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74-7 NAT IONAL EMERGENCIES A C T ^

GOVEK.\MEi\»

Storage MENTS 

IL 1 1 1975

_ L I B R A R Y 

K A N S A S S T A T E U N IV E R S IT Y

H E A R IN G S

BE FO RE TH E

1

0

t

SUBCOMMITTEE ON ADM INISTRATIVE LAW 

AND GOVERNM ENTAL RELATION S

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIV ES

NINETY-FO UR TH CONGRESS

FIR ST SESSION

ON

H.R. 3884

TO TER MIN ATE CERTAIN AUTHORITIES WIT H RES PEC T TO 

NATIONAL EMERGENCIES STILL IN EFF ECT, AND TO P ROV IDE 

FOR ORDERLY IMPLEMENTATION AND TERM INATION OF 

FUTURE NATIONAL EMER GENCIES

MARCH 6, 13, 19, AND APRIL 9, 1975

Serial No. 7

I

Pr inted for the use of the Committee on the Jud iciary

62-218

U.S. GOVERNM ENT PRINTING OFFICE

WASHING TON : 1975
COMMITTEE ON TH E JUDIC IARY

PETER W. RODINO, J r., New Jer sey , Cha irman

JACK BROOKS, Texas

ROB ERT W. KASTENME IER , Wisconsin

DON EDW ARDS, Ca lifo rnia

WILLIAM L. HUN GATE, Missouri 

JOHN CONYERS, J r., Michigan 

JOS HUA EIL BE RG , Pen nsy lva nia 

WALTE R FLO WE RS, Alabama 

JAME S R. MANN, South Carolina 

PAU L S. SARB ANES, Maryla nd 

JOHN F. SE IBER LIN G, Ohio 

GEORGE E. DAN IELS ON, Ca lifo rnia 

ROB ERT F. DRIN2IN, Ma ssa chuse tts 

BARBARA JORDAN , Texas 

RAY THOR NTON, Arkan sas 

ELIZA BE TH HOLTZMAN, New York 

EDWARD MEZVINSKY, Iowa 

HERM AN BADILLO , New York 

ROMANO L. MAZZOLI, Kentuck y 

EDW ARD W. PATTISO N, New York 

CH RISTOP HE R J. DODD, Con necticut 

WIL LIA M J. HUGHES, New J ersey 

MARTIN A. RUSSO, Illi nois

EDW ARD HUT CHINSON, Michigan 

ROB ERT MCCLORY, Illi nois 

TOM RAILSBACK, Illi nois 

CHA RLE S E. WIG GINS, Ca lifornia 

HAM ILTO N FISH , J r., New York 

M. CALDWELL BUT LER , Virginia 

WILLIAM S. C OHEN, Maine 

CARL OS J. MOORHEAD, Ca lifornia 

JOHN M. ASHBROOK, Ohio 

HENRY J. HYDE, Illi nois 

THOMAS N. KINDNE SS, Ohio

Earl C. Dudley, Jr ., Ge neral Co uns el

Garner J. Clin e, S ta ff Dire ctor

Herbert F uch s, Co uns el

William P. Sha ttuc k, Co unsel

Alan A. P arker, Co uns el

J ames F. F alco, Co uns el

Maurice A. Barboza, Co uns el

Thomas W. Hut ch ison , Co uns el

Arth ur P. E ndres, Jr ., Co uns el

Daniel L. Cohe n, Co unsel

F rank lin G. P ol k, Co uns el

Thomas E. Mooney, Co uns el

Michael W. Blom mer, Co unsel

Alexander B. Cook, Co unsel

Constan tine J. Gek as, Co uns el

Alan F. Coffey, Jr ., Co unsel

Kenneth N. Kle e, Co unsel

Sub co mm itt ee on Adm inist ra tiv e L aw and Gove rnm ental Rela tio ns

WALTER FLO WERS, Alabam a, Chairma n

GEOR GE E. DANIELSON, Californ ia CARLOS J. MOORHEAD, California

BARBARA JORDAN , Tex as HAM ILTON FISH , J r., New York

ROMANO L. MAZZOLI, Kentucky

EDW ARD W. PATTISO N, New York

William P. Sha ttuc k, Co unsel

Alan F. Coff ey, Jr ., Ass oci at e Co unsel
C O N T E N T S

Page

Hearings held on—

March 6, 1975______________________________________________ 1

March 13, 1975_____________________________________________ 37

- March 19, 1975_____________________________________________ 49

April 9, 1975______________________________________________ 81

Text of H.R. 3884______________________________________________ 4

Witnesses— Arnold, Elting, senior counselor to the General Counsel, Department

x of the Treasury_____________________________________ 37

Prepared statement_____________________________________ 47

Church, Hon. Frank, a U.S. Senator from the State of Idaho---------- 29

Prepared statement_____________________________________ 34

Curcio, Charles, Assistant General Counsel, General Services Administration _______________________________________________ 71

Feldman, Mark B., Deputy Legal Adviser, Department of State ------- 81

Prepared statement_____________________________________ 87

Fenerty, Walter, Office of the Judge Advocate General of the Air

Forc e__________________________________________________ 49

Hagan, Thomas, Office of Preparedness, General Service Administration ___________________________________________________ 71

Mathias, Hon. Charles McC., Jr., a U.S. Senator from the State of

Maryland ______________________________________________ 20

Prepared statement_____________________________________ 20

Niederlehner, Leonard, Deputy General Counsel, Department of Defense __________________________________________________ 49

Prepared statement_____________________________________ 69

O’Connell, Dennis M., attorney-adviser, Office of the General Counsel,

Department of the Treasury_______________________________ 37

Read. Phillip G., Office of General Management Policy, General Services Administration______________________________________ 71

Prepared statement____________________________________ 78

Rodino, Hon. Peter W., Jr., chairman, House Committee on the

Judiciary ______________________________________________ 1

Prepared statement_____________________________________ 17

Scalia, Antonin, Assistant Attorney General, Office of Legal Counsel,

Department of Justice____________________________________ 88

Prepared statement_____________________________________ 102

* 43chissel, Arthur, Chief, legislative section, Office of the General Counsel, Department of the Treasury______________________________ 13

Sommerfield, Stanley L., Chief Counsel, Foreign Assets Control, Department of the Treasury____________________________________ 37

w Williams, Capt. Charles, U.S. Navy__________________________ 49

Additional material—

Feldman, Mark B., acting legal adviser, Department of State, letter 

dated April 15, 1975, to Hon. Walter Flowers-------------------------- 88

Mills, E. C. “Bus,” executive director. National League of Families of 

American Prisoners and Missing in Southeast Asia, letter dated

April 11, 1975, to Hon. Walter Flowers---------------------------------- 71

Appendix—

Appendix 1: Departmental Report of the Department of Justice—

Scalia. Antonin, Assistant Attorney General, lette r dated May 8,

1975, to Hon. Walter Flowers___________________________ 107

(in)
IV

Appendix 2 : Departm enta l Rep orts—

Albrecht, Richard R., General Counsel, Departm ent of the 

Treasury, letter dated November 12, 1974, to Hon. Peter W.

Rodino, J r_____________________________________________ 115

Ash, Hon. Roy L., Dire ctor, Office of Management and Budget,

letter dated December 12, 1974, to Hon. Peter W. Rodino, J r— 10!)

Blackwell, Robert J., Assistant Secretary for Maritime Affairs,

Department of Commerce, letter date d April 1, 1975, to Hon.

Peter W. Rodino, J r -------------------------------------------------------- 11N

Hoffmann, Martin R., General Counsel, Department of Defense, 

letter dated December 24, 1974, to Hon. Peter W. Rodino, J r — 109

Holton, Linwood, Assistant Secretary for Congressional Relations, Department of State, letter dated November 27, 1974, to

Hon. Peter W. Rodino, J r ----------------------------------------------- 115

Roush, Larry F., Acting Assistant Adm inistrator, General Serv- *

ices Administration, lette r dated November 12, 1974, to Hon.

Peter W. Rodino, J r-------------------------------------------------------- 112

Sampson, Arthu r P„ Adm inistrator, General Services Adm inistration, letter dated March 11, 1974, to Hon. Sam J. Ervin, J r— 112
NATIO NAL EMERGENCIES ACT

THU RSD AY , MAR CH 6, 19 75

H ouse of Representatives,

Subcommittee on Administrative L aw

and Governmental Relations, 

of the Committee on th e J udiciary,

Washing ton, D.C.

Th e subcommittee met, pu rsua nt to no tice, at 2 :15 p.m., in room 2141, 

Ra yb ur n Hou se Office Bu ild ing, Ho n. W al te r Flow ers [chairm an of 

the subcom mittee] presiding. Pr es en t: Re prese nta tiv es Flo wers, Mazzoli, Pa tti so n, Moorhead, 

an d Fish. *

Also presen t: W illiam P. Sh att uck, counsel; Alan F. Coffey, Jr ., 

asso ciate counsel.

Mr. F lowers. We will call the me eting of the Subco mm ittee on 

Ad minist rativ e Law and Gover nment al Re lat ion s to or de r; an d I 

hav e the gr ea t ple asu re of presentin g ou r first witnes s on this most 

im po rtan t matter of term ination of na tio na l emergencies, our most 

distinguis hed colleague an d pe rhap s best kno wn leg islator in the entire wo rld , ou r ch air man an d my gr ea t fri en d, Pet er Rodino.

We will have late r on toda y the d istingu ish ed Se na tor from Idaho, 

Mr. Ch urch, and a fo rm er colle ague of th is com mittee, the distin ­

guish ed S enato r from M arylan d, Mr. M ath ias.

So, wi tho ut fu rthe r ado I would like to tu rn the floor ove r to ou r 

chair ma n. I know th at he is the spo nso r of the bill on the House side 

which I joined him in intr od uc ing . M r. C ha irm an , we will be d elighted 

to he ar from you a t t his tim e.

TESTIMONY OF HON. PETER W. RODINO, JR., A REPRESENTATIVE 

IN CONGRESS FROM THE STATE OF NEW JERSEY

Mr. Rodino. Mr. Ch airm an , th an k you very much fo r prov iding me 

wi th th is op po rtu nity to speak on behalf of H.R. 3884 on na tio na l 

emergencies.

Mr. Ch air ma n, I firs t would like to sta te th at I have a prep ared 

sta tem ent, a detailed s tatemen t which detai ls the vari ou s pro vision s o f 

the bil l, which I wou ld like to have includ ed in th e record in its 

en tirety .

Mr. F lowers. W ith ou t objectio n, i t w ill ce rta inly be incl uded in full.

Mr. Rodino. T ha nk y ou, Mr. Ch airma n. [See p. 17.]

Mr. Ch airma n, I am accompan ied by Mr. E ar l Du dle y, the gen era l 

counsel of our com mittee, an d I th ou gh t th at th is would be a fine 

moment fo r him to be able to initia lly make his appeara nce b efore you r 

subc omm ittee.

(1)
2

Mr. F lowers. We appreciate you bringing him up here. Of course I 

have had the opportunity of meeting Mr. Dudley in your office several 

days ago, and we are delighted to have him aboard as general counsel, 

and look forward to a lot of good work out of him. I know we are 

going to see tha t in all the activities in the Judiciary Committee. If 

you have a word to say, it would be appropriate.

Mr. Rodino. Mr. Dudley ?

Mr. Dudley. Thank you for welcoming me, Mr. Chairman. I too look 

forward to a long and profitable relationship; and I ’m glad to be here.

Mr. F lowers. Thank you.

Mr. Rodino. Mr. Chairman, I am pleased th at the Subcommittee on 

Administrative Law and Governmental Relations has initiated these 

hearings on national emergencies. I t is im portant tha t governmental 

functioning and procedures in emergency situations be understood and 

subject to congressional oversight.

And there is a further pressing need for a statutory resolution and 

definition concerning the exercise of the powers and authorities in connection with national emergencies. A basic assumption in any such 

legislative consideration is tha t our Government should function in 

accordance with regular and normal provisions of law, rathe r than special exceptions and procedures which were intended to be in effect for 

limited periods to meet specific emergency conditions.

We are faced with the situation in which the national emergency 

declared in December of 1950 by President Truman in connection with 

the Korean conflict remains in effect; and tha t even earlier national 

emergency declared by President Roosevelt in March of 1933 to meet 

the pressing problems of the depression has not been terminated. Two 

other emergencies are still in effect. There was a national emergency 

proclaimed by President Nixon on March 23,1970, because of a postal 

strike, and again on August 15, 1971, a national emergency was declared to deal with the balance of payments and other international 

problems.

The time has come for an end of conducting governmental activity 

under authority of laws which derive force from emergencies declared 

years in the past to meet problems and situations which have long 

since disappeared, or are now drastically changed. The history of continued and almost routine utilization of such emergency authorities 

for years after the original crisis has passed serves only to emphasize 

the fact tha t there is an urgent need to provide adequate laws to meet 

our present day needs.

In the last Congress I introduced H.R. 16668 on the subject of national emergencies, and on October 7, 1974, a similar bill, S. 3957, 

passed the Senate and was referred to this committee while it was not 

possible to complete consideration of those measures in the last Congress—we were occupied with another pressing problem—the committee did receive departmental reports late in the year which indicated 

general support for the bill as passed by the Senate. The reports contained additional material and background information which may be 

considered by the subcommittee in connection with the bill.

The bill before us, H.R. 3884, which I have introduced in this session, contains provisions which have been worked out in cooperation 

with the Senate and I understand tha t an identical bill will be intro-
3

duced in that body. H.K. 3884, with two changes, is identical to the 

bill passed by the Senate last fall. The bill embodies a technical change 

suggested by the Office of Management and Budget in its report on 

the earlier bill. The language concerning the termination of the powers 

and authorities relating to existing emergencies in section 101 of title 

1 of the bill has been modified so that the bill would, as of 1 year from 

the date of enactment, terminate the powers and authorities under 

emergencies in effect on the date of enactment rather th an the emergencies in effect 1 year from date of enactment as in the earlier version.

[A copy of H.R. 3884 follows:]

«
4

94tii CONG RESS 

1st Session H. R. 3884

IN TIIE HOUSE OF RE PR ES EN TA TIVE S 

F ebruary 27,1 975

Mr. Rodino (fo r himself, Mr. F lowers, Mr. Danielson, Miss J ordan, Mr. »

Mazzoli, Mr. Pattison of New York, and Mr. Fis ii) introduced the following hill; which was referred to the Committee on the Judiciary

A BILL

To terminate certain authorities with respect to national ’emergencies still in effect, and to provide for orderly implementation and termination of future national emergencies.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 That this Act may be cited as the “National Emergencies

4 Act”.

5 TITLE I—TERMINATING EXISTING DECLARED

6 EMERGENCIES

7 Sec. 101. (a) All powers and authorities possessed by •

8 the President, any other officer or employee of tlie Federal

9 Government, or any executive agency, as defined in section «

10 105 of title 5, LTiited States Code, as a result of the existI
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ence of any declaration of national emergency in effect on 

the date of enactment of this Act are terminated one year 

from the date of such enactment. Such termination shall not 

affect—

(1) any action taken or proceeding pending not 

finally concluded or determined on such date;

(2) any action or proceeding based on any act 

committed prior to such date; or

- (3) any rights or duties that matured or penalties 

f

that were incurred prior to such date.

(b) For the purpose of this section, the words “any 

national emergency in effect means a general declaration of 

emergency made by the Presiden t pursuant to a statute authorizing him to declare a national emergency.

TITL E I I —DECLARATIO NS OF FU TU RE 

NA TIO NA L EM ER GE NC IES 

Sec. 201. (a) In the event the President finds that a 

proclamation of a national emergency is essential to the 

preservation, protection and defense of the Constitution or 

to the common defense, safety, or well-being of the territory 

or people of the United States, the President is authorized 

to proclaim the existence of a national emergency. Such 

proclamation shall immediately be transm itted to the Congress and published in the Federal Register.

(b) Any provisions of law confering powers and au22
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thorities to be exercised during a national emergency shall 

be effective and remain in effect (1) only when the President (in accordance with subsection (a) of this sec tion), 

specifically declares a national emergency, and (2) only in 

accordance with this Act. No law enacted after the date of 

enactment of this Act shall supersede this title unless it does 

so in specific terms, referring to this title, and declaring that 

the new law supersedes the provisions of this title.

Sec. 202. (a) Any national emergency declared by the 

President in accordance with this title shall terminate if—

(1) Congress terminates the emergency by concurrent resolution; or

(2) the President issues a proclamation terminating 

the emergency.

At the end of each yea r following the declaration of an 

emergency which is still in effect, the President shall publish 

in the Federal Register and transmit to the Congress a notice 

stating that the emergency is still in effect. Any national 

emergency declared by the President shall be terminated on 

the date specified in any concurrent resolution referred to in 

clause (1) of this subsection, and any powers or authorities 

exercised by reason of said emergency shall cease to be 

exercised after such specified date, except that such termination shall not affect—

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(A) any action taken or proceeding pending not 

finally concluded or determined on such date;

(B) any action or proceeding based on any act committed prior to such d ate; or

(C) any rights or duties that matured or penalties 

that were incurred prior to such date.

(b) Not later than six months after a national emergency is declared, and not later than the end of each sixmonth period thereafter that such emergency continues, each 

House of Congress shall meet to consider a vote on a concurrent resolution to determine whether that emergency shall 

be terminated.

(c) (1) A concurrent resolution to terminate a national 

emergency declared by the President shall be referred to 

the appropriate committee of the House of Representatives 

or the Senate, as the case may be. One such concurrent resolution shall be reported out by such committee together with 

its recommendations within fifteen calendar days, unless 

such House shall otherwise determine by the yeas and nays.

(2) Any concurrent resolution so reported shall become 

the pending business of the House in question (in the case 

of the Senate the time for debate shall be equally divided between the proponents and the opponents) and shall be voted 

on within three calendar days thereafter, unless such House 

shall otherwise determine by yeas and nays.
8

1 (3) Such a concurrent resolution passed by one House

2 shall he referred to the appropriate committee of the other

3 House and shall be reported out by such committee together

4 with its recommendations within fifteen calendar days and

5 shall thereupon become the pending business of such House 

g and shall be voted upon within three calendar days, unless 

7 such House shall otherwise determine by yeas and nays.

g (4) In the case of any disagreement between the two 

9 Houses of Congress with respect to a concurrent resolution

10 passed by both Houses, conferees shall be promptly ap11 pointed and the committee of conference shall make and file

12 a report with respect to such concurrent resolution within

13 six calendar days after the legislation is referred to the com14 mittee of conference. Notwithstanding any rule in either

15 House concerning the printing of conference reports in the

16 Record or concerning any delay in the consideration of such

17 reports, such report shall be acted on by both Houses not

18 later than six calendar days after the conference report is

19 filed. In the event the conferees are unable to agree within

20 forty-eight hours, they shall report back to their respective

21 Houses in disagreement.

22 (5) Parag raphs ( l) - ( 4 ) of this subsection, subsection

23 (b) of this section, and section 602 (b) of this Act are en24 acted by Congress—
«

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1 (A) as an exercise of the rulemaking power of the

2 Senate and the House of Representatives, respectively,

3 and as such they are deemed a part of the rules of each

4 House, respectively, but applicable only with respect to

5 the procedure to be followed in the House in the case of

6 resolutions described by this subsection; and they super7 sede other rules only to the extent that they are incon8 sistent therewith; and

9 (B) with full recognition of the constitutional right

10 of eith er House to change the rules (so far as relating to

11 the procedure of that House) at any time, in the same

12 manner, and to the same extent as in the case of any

13 other rule of that House.

14 TI TL E I I I —DECLARATIO NS OF WA R BY

15 CONGRESS

16 Sec. 301. Whenever Congress declares war, any provi17 sions of law conferring powers and authorities to be exercised

18 during time of war shall be effective from the date of such

19 declaration.

20 TITL E IV —EX ER CISE OF EMERGENCY POWERS

21 AND AU TH OR ITIES

22 Sec. 401. When the President declares a national emer23 gency no powers or authorities made available by statute for

24 use in the event of an emergency shall be exercised unless

25 and until the President specifies the provisions of law under
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which he proposes that he, or other officers will act. Such 

specification may be made either in the declaration of a 

national emergency, or by one or more contemporaneous or 

subsequent Executive orders published in the Federal 

Register and transm itted to the Congress.

TIT LE V—ACCO UN TABIL ITY AND REPORTING 

RE QU IRE ME NTS OF TH E PR ES ID EN T 

Sec. 501. (a) When the President declares a national

emergency, or Congress declares war, the President shall 

be responsible for maintaining a file and index of all significant orders of the President, including Executive orders 

and proclamations, and each such Executive agency shall 

maintain a file and index of all rules and regulations, issued 

during such emergency or war issued pursuant to such 

declarations.

(b) All such significant orders of the President, including Executive orders, and such rules and regulations 

shall be transmitted to the Congress promptly under means 

to assure confidentiality where appropriate.

(c) When the President declares a national emergency 

or Congress declares war, the President shall transmit to 

Congress, within thirty days after the end of each threemonth period after such declaration, a report on the total 

expenditures incurred by the United States Government 

during such three-month period which are directly attribu-

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table to the exercise of powers and authorities conferred by 

such declaration. Not later than thirty days after the termination of each such emergency or war, the President shall 

transmit a final report on all such expenditures.

TITL E V I—R EP EA L AN D CO NTINU ATION OF 

CE RT AI N EMERG ENC Y POWE R AND OTHER 

STAT UT ES

Sec. 601. (a) Section 34 9( a) of the Immigration and 

Nationality Act (8 U.S.C. 14 81 (a)) is amended—

(1) at the end of paragraph (9 ), by striking out 

or” and inserting in lieu thereof a period; and

(2) by striking out para grap h (10).

(b) Section 26 67 (b) of title 10 of the United States 

Code is amended—

(1) by inserting “and” at the end of parag raph

(3 );

(2) by striking out para grap h (4) ; and

(3) by redesignating para grap h (5) as (4 ).

(c) The joint resolution entitled “J oint resolution to 

authorize the temporary continuation of regulation of consumer credit”, approved August 8, 1947 (12 U.S.C. 24 9), 

is repealed.

(d) Section 5 (m) of the Tennessee Valley Authority 

Act of 1933 (16 U.S.C. 831d(m )) is repealed.
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(e) Section 1383 of title 18, United States Code, is 

repealed.

(f) Section 6 of the Act entitled “An Act to amend

the Public Health Service Act in regard to certain matters 

of personnel and administration, and for other purposes” , 

approved February 28, 1948, is amended by striking out 

subsections (b ), (c), (d ), (e ), and (f) (42 U.S.C.

21 1b ).

(g) Section 9 of the Merchant Ship Sales Act of 1946 

(50 I .S.C. App. 1742) is repealed.

(h) This section shall not affect—

(1) any action taken or proceeding pending not 

finally concluded or determined at the time of repeal;

(- ) any action or proceeding based on any act 

committed prior to rep eal; or

(3) any rights or duties that matured or penalties 

that were incurred prior to repeal.

Sec. 602. (a) The provisions of this Act shall not apply 

to the following provisions of law, the powers and authorities conferred thereby, and actions taken, the reunde r:

(1) Section 5 (b ) of the Act of October 6, 1917, as 

amended (12 U.S.C. 95(a ) ; 50 U.S.C. App. 5 ( b ) ) ;

(2) Section 673 of title 10, United States Code;

(3) Act of April 28, 1942 (40 U.S.C. 278b) ;

(4) Act of June 30, 1949 (41 U.S.C. 252) ;

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(5)

amended

Section 3477 of the Revised

(31 U.S.C. 203) ;

Statutes, as

3 (6) Section 3737 of the Revised Statutes, as

4 amended (41 U.S.C. 15 ).

5 (b) Each committee of the House of Representatives

6 and the Senate having jurisdiction with respect to any pro7 vision of law referred to in subsection (a) ( l) - ( 6 ) of this

8 section shall make a complete study and investigation con9 ceming that provision of law and make a report, including

10 any recommendations and proposed revisions it may have,

11 to its respective House of Congress within twro hundred and

12 seventy days after the date of enactment of this Act.

52- 21 8 0 - 75 - 2
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Mr. Rodino. The report the committee received from the Dep artment of Defense recognized that world conditions and national conditions have changed since the state of national emergency was declared 

in 1950. That Department stated that it recognized the desirability of 

terminating existing states of emergency and further stated that it had 

no objection to their termination. The Department of Defense referred 

to the fact tha t some of the emergency authorities had over the years 

come to be relied upon in the day-to-day operations of the Department 

and that these continuing needs would have to be met. The subcommittee will have the opportunity of considering this aspect of the effect 

of the present bill in its future deliberations.

The report which was received from the Department of the Treasury 

on November 12, 1974, should be helpful to the subcommittee in its 

consideration of the potential impact of the bill upon the authority 

for the regulations applicable during periods of financial crisis to 

banks which are members of the Federal Reserve System and the limitations and restrictions on the activities of such banks during those 

periods. That report also states the position of tha t department concerning the authority providing for regulation during emergencies of 

banking transactions, gold and silver activities, transactions in foreign 

exchange, and the exercise of rights in property subject to American 

jurisdiction in which foreign nationals have an interest.

Some of these matters are of current significance, and therefore the 

situation merits careful evaluation and study. The Treasury Dep artment has also referred to certain provisions of law concerning current 

practices in the warehousing of merchandise in bonded warehouses. 

The subcommittee may desire additional information on this subject.

I might say, Mr. Chairman, th at the facts and the needs I have outlined demonstrate the need for legislative action. As is the case with 

most important matters, the resolution of the various questions involved in such basic and significant legislation is not a simple matter. 

However, I must say I am impressed with the cooperation and understanding we have experienced in working with the Senate—they 

have been working on this matter for some time—and in our contacts 

with the executive departments in connection with this subject, and I 

am pleased that there is general agreement that the time has come for 

positive and constructive legislative action on this bill.

And I do commend your committee, Mr. Chairman, for taking the 

initiative to begin these hearings on this m atter which I think is long 

overdue for correction.

Mr. F lowers. Thank you, Mr. Chairman; and I would certainly 

concur in your statement about the amount of working cooperation 

that we have experienced already in connection with the Senate. In 

addition every indication is that the executive branch as well recognizes tha t the time has come for legislation on this subject.

I thank you, Mr. Chairman, for this statement, which will give us a 

good working position in connection with the legislation. I would ask 

Mr. Moorhead, the ranking minority member, if he has any questions 

of the chairman.

Mr. Moorhead. Mr. Chairman, you are to be commended for intro ­

ducing this bill, which surely will go a long way tow ard solving some 

of the problems which we have in the country. I don’t think people 

want administrative fiats, ra ther than laws, that come into effect and 

stay in effect as many years as these, just because there has been a
15

declaration of emergency. Obviously we need to change the basic law 

upon which those decrees were issued.

There was one thing, as I was reading it, that I have some questions 

about, though, and that was the procedure th at is to be followed when 

the current resolution has passed one of the two Houses. As I see it, 

it is referred to a committee of the other House, and must be referred 

out of that committee to the floor within 15 calendar days; it doesn’t 

give the committee any real opportunity to decide whether they want 

to refer it out, or don’t want to refer it o ut; they are mandated to refer 

it out. I assume with a pass, or don’t pass, recommendation it would 

have to go to the floor; is that correct ?

Mr. Rodino. That’s correct.

Now, I might inte rject that the time element, of course, is something 

that I think is a matter that obviously could be considered by the committee. I recognize tha t these are matters tha t require some kind of 

attention, and whether a given provision is, or is not, desirable, I think 

is a matter the subcommittee would have to consider.

As is pointed out in tha t portion of my statement which I didn’t 

read—these provisions parallel those which have been set forth in 

section 7, Public Law 93-J.48, the War Powers Act, which we passed 

in 1973. I don’t thin k we have to be bound by that, but we paralleled 

it on that basis.

Mr. Moorhead. I was wondering about the requirement that the 

House has to vote on the matter within 3 calendar days. I see a situation where something as important as this might be, that 15 days in the 

committee and 3 calendar days on the floor might not be adequate time 

for a House to make a determination, even though the other House 

has already acted.

I ’m not taking a position on it, but I just really wondered what the 

rationale was on that short period of time.

Mr. Rodino. Well, I suppose the rationale or purpose is really to 

expedite, the work. As you will note in the bill, Mr. Moorhead, th at 

the language, in providing th at the matter would be voted on within 

3 calendar days, provides tha t this would apply unless such House 

shall otherwise determine by “ayes” or “nays” ; so, therefore there is 

a saving feature—a feature providing flexibility.

But again, as I stated, I think t hat since this subject was not considered by the House, and possibly not in this context when it was 

in the Senate—and I have had considerable discussion with the Senators who have been the authors of the legislation—I think it is the 

kind of a problem that this committee should really studiously reflect 

upon.

It was .for tha t reason that I thought we should not just act in 

haste on what the Senate sent over to us late in the last session, but 

tha t this House, and especially th is committee, acting with responsibility and yet with dispatch, should take it under advisement.

Mr. Moorhead. I understand there are something like 400 pieces of 

laws triggered into effect by declarations of emergencies.

Mr. Rodino. Tha t is correct, and it’s a hodgepodge of matters that 

were perhaps never coordinated, and just built up, I guess.

Mr. Moorhead. Has there been any kind of study to determine just 

exactly how dependent the Government is on all these things tha t have 

been triggered into effect during the years? Whether it is going to
16

be necessary to get some kind of alternative legislation in some of the 

areas to take care of this business?

Mr. Rodino. Well, as I pointed out, from time to time it came to 

be that some of the departments which were affected by some of this 

legislation came to rely on some of this legislation. Whether or not— 

again—some of it meets present day needs, and whether or not they 

would be continued is a question, again.

Th at’s why this committee, I believe, has the responsibility of making this determination w hether or not some should not, since they have 

no furth er usefulness—they have served the ir purpose—whether they 

should be immediately eliminated; and then others would under the 

provisions of the bill be considered either workable, and be continued.

Mr. Mooriiead. I heard some of the promotion systems in the Armed 

Forces were triggered by it.

Mr. Rodino. This is a matter that is being worked on, I understand, 

in the Armed Services Committee.

I notice that the two distinguished Senators have come in.

Mr. Mooriiead. Thank you very much.

Mr. F lowers. Now7

 I would like to ask the distinguished gentleman 

from Kentucky if he has any questions of the chairman.

Mr. Mazzoli, Thank you, Mr. Chairman, I would like to join with 

mv colleague in welcoming the chairman.

I have no direct questions. I was at the earlier discussions that we 

had in the office w ith you and the chairman, and we w’ent over some 

of the areas that will be studied later, and the one the chairman talked 

about the type of action to be taken in the House, and the time limit, 

and specification of those seven provisions of law tha t would be continued because of their apparent emergency, or need.

I think there is furthe r draftsmanship tha t has to be done, but 

certainly the outline is here, and that is really what we need to work 

with.

So, T would state just for the record t hat I am delighted to see us 

take this move in connection with emergency powers, in connection 

w ith the budget review, and in connection with several bills on foreign 

policy where the Congress is now sort of mandating it, if you will, the 

quality that always existed, hut sort of has lain fallow for some time.

Thank you, Mr. Chairman, and I look forward to working with you 

on this.

Mr. Rodino. Thank you, and I would like to state, Mr. Mazzoli, I 

introduced this because I believe that we need a vehicle. I know the 

judgment of this committee will be such tha t it will do tha t which it 

believes is in the best interest of expediting the kind of legislation th at 

will be correct, rath er than a piece tha t is accepted because it was 

presented.

Mr. F lowers. The gentleman from Kentucky is also cosponsor with 

the chairman of the bill. I now ask the distinguished gentleman from 

New York if he has any questions.

Mr. Fish. Thank you very much, Mr. Chairman. And I join in welcoming the chairman of the full committee, and I wish to compliment 

him in his initiative on a very necessary piece of legislation. I am very 

pleased to hear of the cooperation that you received from both the 

other body, and the executive branch in working toward a legislative 

vehicle here. Thank you, sir.
17

Mr. Flowers. Thank you, Mr. Fish. Now, our other distinguished 

gentleman from New York, Mr. Pattison.

Mr. Pattison. I think it is an excellent bill.

Mr. Flowers. Mr. Chairman, you have answered all the questions in advance, apparently, and we will hear from you if you have any thing further to say; or we will move on to the next witness.

Mr. Rodino. Thank you very much, Mr. Chairman. I note the pres­ ence of the two distinguished Senators who worked very diligently on this matter. Senator Church and Senator Mathias. I, as chairman of the committee, would like to welcome them here, and say tha t they have always been a great contributing force to tha t legislative body 

in the Congress.

Mr. Flowers. One of them pulled time on this committee, didn ’t he ?

Mr. Rodino. Th at’s correct. [The prepared statement of Hon. Peter W. Rodino, J r., follows:]

Stateme nt of Hon. P eter W. Rodino, J r., a Repr ese ntative in Congr ess F rom

th e State of New J ersey

Mr. C ha irm an , I am plea se d th a t th e Su bc om m itt ee on A dm in is tr at iv e Law an d Gov ernm en tal R el at io ns ha s in it ia te d th es e hea ri ngs on N at io na l Em er ge n­ cies. It is im port an t th a t go ve rn m en tal fu nc tionin g and pr oc ed ur es in em erge nc y si tu ati ons be un der st ood an d su bj ec t to Con gr es sion al ov er sigh t. F u rt h er, th ere is a pr es sing need fo r a sta tu to ry re so lu tion and de fin iti on co nc erning th e exer­ cis e of th e po wers an d auth ori ti es in co nn ec tio n w ith nat io nal em erge nc ies . A ba sic as su m pt io n in any su ch legi slat iv e co nsi der at io n is th a t our Gov er nm en t shou ld fu nc tio n in ac co rd an ce with re gula r an d no rm al pr ov isions of law ra th e r th an special ex ce pt io ns and proc ed ur es which were in te nd ed to be in effect fo r lim ited pe rio ds to mee t specific em erge nc y co nd iti on s. We are face d w ith th e si tu at io n in which th e nat io nal em erge nc y dec la re d in Decem ber of 1950 by Pre si den t Tru m an in co nn ec tio n w ith th e K or ea n conflic t re m ains in effect. The eve n earl ie r nati onal em ergency de cl ar ed by P re si den t Ro osevelt in M ar ch of 1933 to me et th e pre ss in g prob lems of th e de pr es sion has not been te rm in at ed . Tw o ot her em erge nc ies a re st il l in effect. Ther e w as a nat io nal em erge nc y pr o­ claimed by P re si den t Nixon on March 23, 1970 be ca us e of a Po st Office st ri ke, an d ag ain on Aug us t 15, 1971, a nat io nal em erge nc y w as de clar ed to de al w ith ba la nc e of pa ym en ts and oth er in te rn ati onal prob lems. Th e tim e has com e fo r an en d of co nd uc tin g go ve rn m en tal acti vit y under auth ori ty of la w s which de rive for ce fro m em er ge nc ies de clar ed yea rs in th e pas t to me et prob lems an d si tu ati ons wh ich ha ve long sin ce di sa pp ea re d or are now dra st ic ally c ha ng ed . Th e his to ry of c on tin ue d and al m os t ro utine uti li zati on of s uc h em ergency au th o ri ti es fo r ye ar s aft e r th e ori gin al cr is is ha s pa ss ed se rv es on ly to em ph as ize th e fa ct th a t th ere is an urg ent ne ed to prov ide ad equate la w s to me et our pre se nt da y 

needs. In th e la st Con gress I in trod uce d th e b ill H.R. 16668 on th e su bj ec t of N at io nal Em erge nc ies , an d on O ctob er 7, 1974, a si m il ar bill, S. 3957, pa ss ed th e S en at e an d was re fe rr ed to th is Co mm ittee. W hile it w as no t po ssible to co mplete co n­ si der at io n of th os e m ea su re s in th e la st Co ng res s, th e co mmitt ee did rece ive dep ar tm en ta l re port s la te in th e yea r wh ich in di ca te d ge ne ra l su pp or t fo r th e bill as pa ssed by th e Sen ate. Th e re port s co nt ai ne d ad ditio nal m at er ia l an d ba ck ­ gr ou nd in fo rm at io n which may be co ns id er ed by th e su bc om mitt ee in co nn ec tio n w ith th e curr ent bill. The bill H.R . 3884, which I ha ve in trod uc ed in th is session, co nt ai ns pr ov isions which ha ve been wor ke d ou t in co op er ation w ith th e Sen at e an d I under st an d th a t an id en tica l bil l will be in trod uc ed in th a t bod y. H.R. 3884, w ith tw o ch an ge s, is id en ti ca l to th e bill pa ss ed by th e Sen ate la st fa ll. T he bil l em bo dies a tech ni ca l ch an ge su gg ested by th e Office of M an ag em en t an d Bud ge t in it s re por t on th e e arl ie r bill. Th e la ngu ag e co nc er ni ng th e te rm in ati on of th e po wers an d auth ori ti es re la ti n g to ex is ting em er ge nc ies in section 101 of ti tl e I of th e bill ha s bee n mo difie d so th a t th e te rm in ati on wou ld affect thos e po wers and auth ori ti es unde r em er ge nc ies in eff ect on th e date of en ac tm en t ra th e r th an on e year fro m d ate o f e nac tm en t as in t he e a rl ie r ve rsion. Th e rei>ort th e Com m itt ee received fro m th e D ep art m ent of Defen se reco g­ nize d th a t w or ld co nd itio ns an d nat io nal co nd itio ns have c ha ng ed sin ce th e sta te
18

of national emergency was declared in 1950. That departm ent stated that it 

recognized the desirability of terminating existing sta tes of emergency and 

fu rth er sta ted th at it had no objection to their term ination. The Departm ent of 

Defense ref err ed to the fact that some of these emergency autho rities had over 

the y ear s come to be relied upon in the day to day operation s of the Depa rtment 

and th at these continuing needs would have to be met. The subcommittee will 

have the opportu nity of considering thi s aspect of the effect of the present hill 

in its f utur e deliberations.

The rep ort received from the Departm ent of the Treasury on November 12, 

1974, should be helpful to the subcomm ittee in its consideration of the potential 

impact of the bill upon the authority for the regulations applicable during periods of financial crisis to banks which are members of the Fed eral Reserve 

System and the limitations and restrictions on the activities of such banks 

during those periods. Th at repo rt also states the position of th at department 

concerning the autho rity providing for regulation during emergencies of banking transactio ns, gold and silver activities, transactions in foreign exchange, and 

the exercise of righ ts in property sub ject to American jurisdictio n in which foreign nation als have an interest. Some of these matters are of c urr ent significance, 

and therefore the situation merits care ful evalu ation and study. The Treasury 

Department ha s also refe rred to certain provisions of law concerning current 

practices in the warehousing of merchandise in bonded warehouses. The subcommittee may desire additional information on this subject.

I would now like to outline the provisions of the bill H.R. 3884. Upon enac tment, the bill would be known as the “National Emergencies Act”. Title I of the 

bill provides for the term ination af ter one year of all powers and authorities 

possessed by the Presiden t or other officer or employee of the Federal Government, based upon any decla ration of national emergency in effect on the date of 

enactment. The one year delay is included to provide for a term ination from 

dependence upon emergency autho rity to utilizatio n of procedures under perm anent law and under new enactme nts dra fted to meet the present day needs and 

requirements. In my opinion to do otherwise would have a serious disruptive effect 

in cer tain governmental activity. Subsection (b) of section 1 contains a definition 

of the term “any natio nal emergency in effect” as it relates to the section.

Title II of the bill concerns the declaration of future national emergencies. I 

feel th at in the future our laws should define and clarify the natur e or effect of 

national emergencies. The provisions of this title of the bill are included to insure th at the Congress will exercise contin uing oversight in connection with any 

future emergencies. Section 201 concerns the presidential proclamations of a 

national emergency and auth orizes such proclamations upon a finding that it is 

essential to the preservation, protection and defense of the Constitution or to 

the common defense, safety or well-being of the ter ritory or people of the United 

State s. The proclamation would be immediately transm itte d to the Congress and 

published in the Federal Register. Subsection (b) limits the effectiveness of provisions of law to be exercised during a national emergency to periods when a 

President’s d eclaration of national emergency is in effect and then only in accordance with the balance of the provisions of the bill. This latte r provision has 

particu lar reference to the provision of section 401 which requires that the President specify the provisions of law he will utilize or under which other officers 

of the Government will act. Subsection (b) also conta ins a provision stating 

that no subsequent enactment will supersede the title unless it does so in specific 

term s declaring th at the new law supersedes the provisions of the title.

Section 202(a) provides for the term ination of national emergencies declared 

by th e President in accordance w ith Title II of the bill. They would be term inate d 

by concurrent resolution of the Congress or by a proclamation by the President. 

The section contains an additional requirement that at the end of each year 

following the decla ration of an emergency which is still in effect, the President 

shall publish in the Federal Reg ister and transm it to the Congress a notice stating th at th e emergency is still in effect.

Subsections (b) and (c) of Section 202 detail the priority procedures which 

will govern the consideratio n in the Congress of a concurrent resolution which 

would term inate a natio nal emergency. These provisions paralle l those set forth 

in section 7 of Public Law 93-148, the War Powers Act of November 7, 1973. Subsection (b) provides that not later tha n six months after a national emergency 

is declared, and then after each following six-month period during the continuance of an emergency, each House of Congress shall meet to consider a vote 

on a concurrent resolution to determine whether th at emergency shall be termi-
19

nated. It is further provided that in either House a concurrent resolution to terminate a national emergency declared by the President shall be referred to the appropriate committee and a resolution is to be reported out by such committee together with its recommendations within fifteen calendar days, unless such House shall otherwise determine by the yeas and nays. Upon being reported, the concurrent resolution shall become the pending business of the House in question and shall be voted on within three calendar days, unless such House shall otherwise determine by yeas and nays. Upon passage by one House, the concur­ rent resolution is to be referred to the appropriate committee of the other House and it similarly would be required to be reported out in fifteen calendar days. It would become the pending business of that House and he voted upon within three calendar days unless otherwise determined by tha t House by vote of the yeas 

and nays. In the event of disagreement between the two Houses on the concurrent resolu­ tion passed by both, the bill would require tha t conferees be promptly api»ointed and their report filed within six days and the House would be required to act within six calendar days thereafter. Should the conferees disagree within forty- eight hours they are to report back to their respective Houses in disagreement. These provisions of subsection 202(c) are stated to be an exercise of the rule- making power of the House and Senate, and the constitutional power of either 

House to change its rules is specifically recognized in the bill. Section 301 specifies th at powers and authorities under any law which become effective during a war are to be effective from the date of the declaration of 

war. Section 401 contains the provision I have already referred to, tha t is, that pow­ ers and authorities made available by statute tor use during national emergen­ cies are effective after a declaration of national emergency only afte r the Presi­ dent specifies the specific provisions of such laws which will be utilized. Section 501 details the accountability and reporting requirements applicable to the President in connection with national emergencies. All significant orders of the President shall be filed and an index maintained on that file. Further, each Ex­ ecutive agency is to maintain a file and an index of all rules and regulations is­ sued during an emergency or war. These orders, rules, and regulations are to be transmitted to the Congress. Subsection (c) requires that the President transm it to the Congress within thirty days of the end of each three month period afte r declaration of a national emergency or declaration of war a report of the total expenditures of the Government attributable to the exercise of powers and au­ thorities brought into force by the declaration. A final report of all such ex­ penditures is required within thirty days of the termination of the war or the 

emergency. Title VI provides for the repeal of provisions of seven laws which have been found to be superseded or obsolescent, and the continuation in effect of certain other provisions that have been deemed to be important to Government op­ eration. I have noted tha t the departmental reports have commented upon this aspect of the bill, and further testimony in connection with the contemplated hearings on the hill will clarify the circumstances which prompted the inclusion 

of these provisions. The facts and the needs I have outlined demonstrate the need for legislative action. As is the case with most important matters, the resolution of the various questions involved in such basic and significant legislation is not a simple matter. However. I am impressed with the cooperation and understanding we have experi­ enced in working with the Senate and in our contacts with the executive depart­ ments in connection with the subject, and I am pleased tha t there is general agreement that the time has come for positive and constructive legislative action.

Mr. F lowers. I certainly join our distinguished chairman in welcoming you two gentlemen from the other side of the Capitol. We all 

feel like we know you well, and certainly by your excellent reputation 

and the work you have already done in connection with this legislation.

I believe Senator Mathias is going to speak first, and then Senator 

Church. I note that you did serve on this committee when you were a 

Member of the House of Representatives a few years ago, before I had 

the opportunity of being here. But, it is certainly a pleasure to have 

you with us.
20

TESTIMO NY OF HON. CHARLES McC. MATHIAS, JR ., A U.S. SENATOR 

FROM TH E STA TE OF MAR YLAND

Mr. Mathias. Thank you very much, Mr. Chairman. It is a pleasure 

and honor to come back to the committee and find th at it is in such 

excellent hands.

One of the incidents of serving as cochairman of a completely nonpartisan committee—which is what our Committee on National Em ergencies is—is that the two cochairmen have exactly equal status, and 

we are never quite sure of who goes first. [Laughter.]

So, having worked out a-----

Mr. F lowers. I thought that was the “Two to one plus one rule.” ♦

Mr. M athias. Well, we worked out sort of an “Alphonse and 

Gaston, and as a result I have come up with my turn to lead off today.

Mr. Chairman, I have a rather lengthy statement here, which both 

in deference to your time and my uncertain thro at I will ask permis- *

sion to summarize very briefly, and submit it for the record.

Mr. F lowers. We will be delighted to receive your entire statement 

and ask you to comment as you see fit.

[The prepared statement of Hon. Charles McC. Mathias, Jr., 

follows:]

Sta te me nt of Senator Cha rles McC. Mathia s, J r., a U.S. Senator F rom th e

Sta te of Maryland

Mr. C ha irm an an d Mem bers of th e Ju dic ia ry Co mmittee , th e old va ud ev ill e 

act of Mr. Al ph on se an d Mr. G as to n—in wh ich Mr. Alpho ns e sa id “A fter you ,

Mr. G as to n, ” an d Mr. Gaston sa id , “A fter you, Mr. Alpho ns e,” an d the tw o of 

them th en knocked he ad s go ing th ro ugh th e sa m e do or—c ou ld we ll ha ve bee n 

th e p att ern fo r Sen at or Chu rch and I du ri ng th e tw o yea rs we hav e been th e only 

co -c ha irm en in th e Co ng res s. B ut I am sp ea ki ng f ir st be ca us e we ha ve wo rked ou t 

ou r ac t in a noth er wa y, alt ern ati n g in th e lea d-o ff p ositi on .

In fa ct it is no t only in su ch fo rm al m att ers th a t th e Sen at e S o c ia l Co mmittee 

on N at io nal Em erge nc ies an D el eg at ed Em erge nc y Pow er s has worke d thin gs 

out co op er atively. Eve ry st ep o f th e wa y of o ur del ib er at io ns has be en mar ke d by 

a unan im ity cu stom ar y fo r th e dec la ra ti on of N at io na l P ean u t W eek or t he fight 

ag ain st he m op hi lia bu t high ly unusu al fo r sign ifi ca nt qu es tion s of n at io nal poli cy.

It is be ca us e of th is sp ir it th a t Sen at or Chu rch an d I ca n rec om men d th e N ational Em er ge nc ies Ac t w ith su ch en th usi as m toda y. Let me briefly review th e 

his to ry of t he c om m itt ee 's work in th a t lig ht.

My ow n in te re st in th e qu es tion of em erge nc y po wers de ve lope d ou t of ou r 

ex pe rien ce in th e Vietnam W ar and th e i nc ur sion in to Ca mbo dia. It be came clea r 

th a t th e P re si dent ha d po w er s to co mmit us to w arf are w ith out ad eq uat e re sp ec t 0

fo r th e c onst itutional re quir em en t th a t Co ng ress a lone ca n dec la re a sta te o f w ar.

D ur in g th e years 1969 to 1972, part ic ula rl y, I in trod uc ed or co spon so red nu m er ­

ou s bi lls to re pe al Con gr es sion al re so lu tion s in su ppo rt of th e P re si dent’s ac tio ns , 

fo r ex am pl e, in Fo rm os a or th e G ul f of To nk in. In 1971, I su bm itte d Se na te Co ncu rr en t R es ol ut io n 27 to est ab li sh a spec ial jo in t co m m ittee to st udy th e eff ect 4

of te rm in ati n g th e first st ate of em erge nc y we foun d in ex istenc e, th a t de clar ed 

by P re si dent Tru m an in 1950 d u ri n g th e Kor ea n W ar . The n on Ma y 23. 1972 I 

in trod uc ed , w ith Sen at or C hurc h's co -spo nsorship. Sen at e R es ol ut io n 304. wh ich 

ca lle d fo r th e cr ea tion of th e S enate Sp ec ial Co mmitt ee on th e Ter m in at io n of 

th e N at io na l Em erg en cy . The co m m itte e was to be em po wered “to co nd uc t a 

st ud y and in ve st ig at io n w ith re sp ect to th e te rm in at io n of th e 1950 em erge nc y,” 

to co ns id er prob lems wh ich m ig ht ari se as th e re su lt of th e te rm in at io n an d to 

co ns id er w hat adm in is tr ati ve or le gis la tive ac tions mig ht be ne ce ss ar y.

S. Re s. 304 w as th e su bj ec t of hear in gs be fore th e Sen at e For ei gn Relat io ns 

Com m itt ee to wh ich it w as re fe rr ed. On Ju n e 13, 1972, th is re so lu tion was 

re po rt ed fa vo ra bl y aft e r heari ngs an d ex ec ut ive re po rts. The hil l was su bs equ en tly pa ss ed an d on Se pt em be r 18 Sen at or s Chu rch. H art , Pe ll, Ste venson ,

M at hi as , Han se n, Pea rs on an d Cas e w er e ap po in te d— an eq ual num be r of Ma-
21

jority and Minority members—and Senator Church and I became co-chairmen. 

On January 6, 1973 the committee began its work under the authority of S. Res. 9 

in the 93rd Congress.

It might be useful at this point if I would take you back to our perspective 

at that time. We knew that the Truman Korean War Emergency was still in 

existence and that 200 other special powers had accrued to the President over 

the years. We knew, for example, tha t President Johnson had used emergency 

powers in January, 1968, to control American investments abroad in an effort 

to ease that year’s balance-of-payments crisis, and tha t President Nixon had 

invoked the same authority in February, 1971, to suspend the provisions of the 

Davis-Bacon Act. We also knew tha t l’resident Nixon had invoked emergency 

powers in August, 1971, to meet balance-of-payments problems. But we did not 

know the full story. Like a child with a follow-the-numbers picture puzzle, we 

were only beginning to move from dot to dot and see the outlines of the subject.

♦ We did know that some authorities of enormous breadth existed, and I remember quoting at the time from Professor Duane Lockard, chairman of the Department of Politics at Princeton, t h at:

“In essence the Presidency has become an elective kingship with decisive power 

in a broad range of matters. . . . He can start a war or end one; he can breathe 

■ life into a domestic project or smother it.”

Let me tell you about jus t one of the authorities we discovered which illustrate the point.

In 1917 the Congress passed the Trading with the Enemy Act which shifted 

from Congress to the President the power to regulate trade and financial tra nsactions between Americans and foreigners in wartime. Then came May 9, 1933. 

The American monetary system was in trouble. Americans were withdrawing 

deposits from the banks at a panic rate, threatening the collapse of the banking 

system. President Roosevelt convened the Congress and demanded, in effect, 

tha t it revamp the Constitution before midnight. The purpose of the Congressional action was to legitimize retroactively the Bank Holiday proclaimed 

three days before and the vehicle was to be an amendment to Section 5b of the 

Trading with the Enemy Act giving the power to the President to regulate 

commerce in peacetime as well as during war.

An omnibus bill was referred to the Banking and Currency Committee with 

instructions tha t it be reported out in one hour. It was not printed and was not 

available for the Senators to read. Senator Long complained th at he did not know 

what was in it until it was read by the clerk. Most Senators indicated they had 

grave reservations about the bill’s provisions but in the crisis the bill was passed 

anyway before midnight by both houses. The bill has been used ever since to regulate many aspects of foreign trade and international monetary control. It is, in 

fact, one of those authorities so crucial to the executive th at we have not undertaken to place it under the authority of the National Emergencies Act before 

you. While this may be an extreme example, much of our emergency legislation 

has been drafted by the Executive Branch and passed in just such a crisis 

atmosphere.

When the committee was established we immediately began a survey to determine the scope of existing law. We met with Attorney General Kleindienst and 

« enlisted the cooperation of the Department of Justice. A special task force was

established in the White House to look into the question of emergency powers. 

We began working with the Senate committees having standing authority over 

the pertinent legislation and began a process of keeping your committee abreast 

of all that we were doing.

* Discovering the scope of existing law proved to be a problem. Nowhere in the 

executive branch or in the Library of Congress was there a compendium of national emergency legislation. In the past, the only way to compile a catalog useful 

to Congress would have required going through every page of the 86 volumes of 

the Statutes-at-Large. Fortunately, the U.S. Code was put into computer tapes 

by the U.S. Air Force in the so-called LITE system, which is located at a military 

facility in the State of Colorado. The Special Committee devised several programs for computer searches based on a wide spectrum of key words and phrases 

contained in typical provisions of law which delegate extraordinary powers. 

Examples of some trigger words are “national emergency,” “war,” “national 

defense,” “invasion,” “insurrection,” etc.

These programs resulted in several thousand citations. At this point, the 

Special Committee and Library of Congress staffs went through the printouts,
22

separating out all those provisions of the U.S. Code most relevant to war or 

national emergency, and weeding out those provisions of a trivial or extremely 

remote nature. Two separate teams worked on the computer printouts and the 

results were put together in a third basic list of U.S. Code citations.

To determine legislative intent, the U.S. Code citations were then hand 

checked against the Statutes-at-Large, the Reports of Standing Committees of 

the U.S. Senate and House of Representatives and, where applicable, Reports 

of Senate and House Conferences.

In addition, the laws passed since the publishing of the 1970 Code were checked 

and relevant citations were added to the master list. The compilation was then 

checked against existing official catalogs of the Department of Defense, the Office 

of Emergency Planning, and a 1962 House Judiciary Committee synopsis of emergency powers. The result was a compilation and commentary on 470 special 

statutes invokable by the President during a time of declared national emergency.

I should point out exactly how the 470 statutes were identified. All the statutes *

covered by the National Emergencies Act are characterized by their requiring 

tha t the President proclaim a state of national emergency or a state of war to be 

operative. This excludes some legislation which was passed during a time of 

emergency and was originally intended only for that purpose but nonetheless 

continues in force to this day. An example of this is the Feed and Forage Act *

of 1861 which was passed to enable the cavalry in the American West to buy 

feed for their horses when Congress was out of session. Since then the President 

has invoked the authority of this Act to expend millions of dollars without benefit of Congressional action. During the Vietnam War and during the Berlin Airlift, the Department of Defense used the law repeatedly to fund military activities not authorized by Congress. These hundreds of statutes clothe the President with virtually unlimited 

powers with which he can affect the lives of American citizens in a host of allencompassing ways. This vast range of powers, taken together, confers enough 

authority on the President to rule the country without reference to normal constitutional processes. Under the authority delegated by these statutes, the President ma y: seize 

property; organize and control the means of production; seize commodities; 

assign military forces abroad; institu te martial law; seize and control all tran sportation and communication; regulate the operation of private enterprise ; restrict tra ve l; and, in a plethora of particular ways, control the lives of all 

American citizens. A review of these emergency statutes reveals a consistent pattern of lawmaking by which Congress, through its own actions, has transferred this awesome power to the Executive, ostensibly to meet the problems of governing effectively in times of great crisis. No charge can be sustained that the Executive 

branch usurped these powers from the Legislative branch. The contrary is tr ue; 

the transfer has been routinely mandated by Congress itself in response to the 

exigencies of war and other grave emergencies. A few examples from the 470 emergency statutes now in force should make it 

clear what kinds of extraordinary discretionary power have been delegated to 

the President: Statute 10 USC 712 permits the President “during a war or a declared na- *

tional emergency” to “detail members of the Army, Navy, Air Force, and Marine 

Corns to assist in military matters” in any foreign country.

Under 10 USC 333. the President can use the militia or armed forces to suppress 

“conspiracy,” if it is likelv that “any pa rt” of the people in a state will be deprived 

of some constitutional right, and the state itself refuses to act. Under this statute. *

the President conceivably could circumvent Article IV. Section 4. of the Constitution even before waiting for state legislatures or state executives to request 

Federal troops. Under 18 USC 1383. the President has authority to declare any part or all of 

the United States military zones. People in such zones can be jailed for a year 

for violating any “executive order of the President.” Would these arrests be 

reviewable in court? It is not clear. Judicial review of agency actions is guaranteed in 5 USC 702. but 5 USC 701 excludes actions taken under declarations 

of martial law.

A President could make use of Public Law 733. which expresses the determination of the United States to prevent “by whatever means may be necessary including the use of arms.” anv “subversive” activities by the government of Cuba.

Under 47 USC 308, the Federal Communications Commission could, during
a national emergency, modify existing broadc ast licenses under term s it might 

prescribe. Under 47 USC 606, the President can amend “as he sees fit” the rules and reg u­ lations of the Fed eral Communications Commission and, in particular, can “cause 

the closing of any fa cility or statio n for w ire communications.” If the President finds the nation “threatene d by att ack,” he could, under 44 USC 1505, cease to publish his regu lations in the Federal Register if he deter ­ mines that it is “imp racticable.” This could open the way to promulgation of 

secret laws. What these examples suggest, and wh at the magnitude of emergency powers affirm, is that most of these laws do not provide for congressional oversight or termination. There are two reasons which can be adduced as to why this is so. Fir st, few, if any, foresaw that the temporary sta tes of emergency declared in 1933, 1939, 1941, 1950, 1970, and 1971, would become what are now regarded collectively as vir tua lly permanen t sta tes of emergency—the 1939 and 1941 emergencies were term inated in 1952. Forty years can, in no way, be defined as a temporary emergency. Second, the various administrations which drafted these laws were uninterested in providing fo r congressional review, oversight, or te rmi­ nation of these delegated powers which gave to the President such wide-ranging 

authority. Consequently, we discovered, as you know, th at not one but four sta tes of national emergency are still in force. The national emergency decla red by Presi­ dent Franklin D. Roosevelt in March 1933 to meet the problems of the Great De­ pression has not yet been terminated. The national emergency declared by Pre si­ dent Truman in December 1950, to better prosecute the Korean conflict, is still in force. The national emergency proclaimed by President Nixon on March 23, 1970, to handle the Post Office strike, and th e A ugust 15, 1971, national emergency to meet balance of payments and other intern ationa l economic problems of th at 

time are still in force. The result is tha t a ma jority of the people in the United States have lived all of their lives under emergency Government. For four decades normal con stitutio nal processes have not been the rule. The wars, emergencies, and crises of various kinds of the past 40 years, in addition to the growth of the executive branch bureaucracy under the leadership of strong Presiden ts, and the diminished role of the Congress in the making of policy—these factors have all contributed to 

the erosion of constitutio nal government. Constitutional government might be furth er eroded than it is had President Trum an succeeded in ass erting th at the Pre sident has “inherent powers” to de­ clare a national emergency and act as he sees fit. During its deliberations, the committee repeatedly ref err ed to the opinion of Jus tice Jackson in the Youngs­ town Steel case of 1952. You will recall that President T ruman attempted to take over the steel mills during a prolonged strike but was turned back by the Supreme Court.'The words of J ust ice Jackson are worth quoting a t some length in th e light 

of th e legislation before you. Speaking for the ma jority Jackson wrote that “the President’s power must stem eith er from an act of Congress or from the Constitution itself,” and said 

fu rt her : “Emergency powers are consistent with free government only when the ir control is lodged elsewhere tha n in the Executive who exercises them. That is the safe­ gua rd that would be nullified by our adoption of the ‘inherent powers’ form ula. Nothing in my experience convinces me th at such risks are warra nte d by any real necessity, although such powers would, of course, be an executive 

convenience. “In the practical working of our government we alread y have evolved a tech ­ nique within the fram ework of the Constitution by which normal executive powers may be considerably expanded to meet an emergency. Congress may and has grante d e xtraordi nary author itie s which lie d orm ant in normal times but may be called into play by the Executive in war or upon proclamation of a nation al 

emergency. . . . “In view of the ease, expedition and safety with which Congress can grant and has granted large emergency powers, c erta inly ample to embrace this crisis, I am quite unimpressed with the argum ent that we should affirm possession of them without statute. Such power e ither has no beginning or it has no end. If it exists, it need submit to no legal restraint. I am not alarmed that it would plunge us straightw’ay into dictato rship, but it is at least a step in that wrong direction.
24

“But I have no illusion th at any decision by this Court can keep power in the 

han ds of Congress if it is not wise and timely in meeting its problems. A crisis 

th at challenges the President equally, or perhaps prim arily, challenges Congress. 

If not good law, there was worldly wisdom in the maxim attributed to Napoleon 

th at ‘The tools belong to the man who can use them.’ We may say that power 

to legislate for emergencies belongs in the hands of Congress, but only Congress 

itse lf can prevent power from slipping through its fingers. With all its defects, 

delays and inconveniences, men have discovered no technique for long preserving 

free government except that the Exec utives be under the law, and that the law 

be made by parlia mentary d elib erations.”

In our view, Congress should provide sta tutory guidelines to ass ure the full 

operation of constitutional processes in time of wa r or emergency. T his is the best 

prescription to avoid any futur e exercise of arb itrary au thorita ria n power. For 

as the Youngstown case decided, where there is a s tatute, the Exec utive is obliged 

to use the sta tut ory remedy; where there are no lawful statutory guidelines is 

to invite so-called inhe rent powers to come into play. There is without question 

a need, to provide the executive branch with an effective, workable method for 

dealing with future emergencies in accord with constitutional processes. The 

Senate Committee has sought to do th is in fulfillment of its m andate.

Mr. Mathias. In the statement I have reviewed certain legislation 

which I have introduced over a period of years, which ultimately led 

to the establishment of the special committee in the Senate.

As a result of the establishment of that committee, and the leadership that Senator Church and other members gave it, we discovered 

a lot of interesting facts. One wyas that there is not only “a state of 

emergency,” but there are in fact several states of emergency, with 

substantial powers which have been utilized by various Presidents.

President Johnson, for example, used emergency powers in 1968 to 

control American investments abroad. President Nixon in February 

of 1971 suspended the provisions of the Davis-Bacon Act. Again, 

President Nixon in 1971 to meet the balance-of-payments problems.

But even with all of this we did not get the full picture, and we have 

to begin to fill in what was available. One of the key factors was the 

1917 Tra ding With the Enemy Act, which shifted from Congress to 

the President the power to regulate trade and financial transaction 

between Americans and foreigners in war time—in war time, tha t is 

the key phrase. And in the great depression the first keystone of “The 

New D eal” was, in fact, an amendment to that 1917 legislation, which 

gave the President extraordinary powers to regulate commerce in 

peace time, as well as in war time.

And this is, I suppose, the genesis of this whole emergency powers 

treatment of the presidency. Tha t particular bill has been used ever 

since to regulate many aspects of foreign trade and financial 

transactions.

But I thin k tha t bill also is a good place to s tart our discussion because it illustrates the difficulty of ascertaining the scope of existing 

law. Now, fortunately, the United States Code has been put into a 

ccmputer by the U.S. A ir Force; of all institutions we would think it 

w >uld have been the Department of Justice, or the Library of Congj ess, but it was in fact the Air Force.

And throu gh the very splendid cooperation of then Secretary of 

Defense Laird, we got access to the Air Force’s computer, and we 

were able to use the computer by utilizing certain trigger words, such 

as, national emergency, war, national defense, invasion, insurrection, 

and similar words. And this computer program ing resulted in several 

thousand citations. At this point both the special committee staff and 

the Library of Congress went through the printouts, separated all 

those provisions in the code that were most relevant to war and na-
25

tional emergency, and eliminated the trivial, or the tangentially related 

ones. And we further researched this prin tout and came out, finally, with 470 statutes that we considered to be significant emergency power 

grants. These nearly 500 statutes clothes the President with virtually un­ limited powers in some cases which could affect the lives of American citizens in a host of all-encompassing ways. This range of powers, taken together, confers enough authority on the President to rule the country without reference to normal constitutional processes; and 

it’s just that serious. A review of the passage of these statutes revealed a consistent pattern 

» by which Congress, by its own actions, had transferred this power to the Executive, ostensibly to meet the problems of governing effectively in a time of crisis. But the powers have outlasted the crises, and tha t is the situation tha t we are trying to confront by this legislation.

■ Let me give you just one example, that under title 10, United States Code, section 712, the President is permitted during a war or declared national emergency to detail members of the Army, Navy, Air Force, and Marine Corps to assist in m ilitary matters in any foreign country. I don’t think I have to elaborate on the significance of that in a generation such as ours. Under 10 U.S.C. 333, the President can use the militia or Armed Forces to suppress conspiracy, if it is likely that any p art of the people in a State will be deprived of some constitutional righ t, and the State itself refuses to act. Of course, this could have enormous consequences. One of the most radical of these powers is 18 U.S.C. 1383, in which the President has au thority to declare any p art of the United States as military zones. And people in such zones can be jailed for a year for violating any Executive order of the President. Now, it’s not clear whether such arrests would be reviewable by the court. It’s not clear whether a court could act within a time to make such review meaning­ ful. But those are just several examples, to which I could add 47 U.S.C. 308, under which the Federal Communications Commission could during a national emergency, modify existing broadcast licenses under any terms it might prescribe, completely taking over the legislative function. Or, under 47 U.S.C. 606, the President can amend as he sees fit the rules and regulations of the Federal Communications 

Commission.

* And if this committee had not acted in another situation as promptly as it did, that might have been a power tha t might have been used in 

a very dangerous fashion. Well, Mr. Chairman, I rely on what I have said, and on the written

* statement which I present. But I think there is a forceful case to be 

made for consideration of this subject.

Mr. Flowers. Thank you very much, Senator. Your statement, of 

course, in totality, has been received. You and the distinguished Senator with you have certainly shown your leadership in this regard, and we will profit greatly by the work 

that has been done by your special subcommittee. I ask the gentleman from California if he has any questions.

Mr. Moorhead. Senator, thank you for coming over to our House today, and we very much appreciate the work you have put in this 

important piece of legislation.
26

There are a few questions I would like to ask about it, however. In 

the Senate the special committee studied the problems and came up 

with this bill at the end of the hearings; is that rig ht ?

Mr. Mathias. That’s correct.

Mr. Moorhead. Have there been hearings on the specific legislation 

itself, the wording of the legislation ?

Mr. Mathias. We held hearings prior to the formulation of the 

legislation. We did not hold any hearings on the final language as 

drafted.

Mr. Moorhead. Does this particula r bill have any effect on the Federal disaster relief program ?

Mr. Mathias. I would not see that it would have any impact on disaster relief.

Mr. Moorhead. Section 101(a) terminates the powers and authorities exercised by the President and other executive officials as a 

result of a national emergency 1 year from the date of enactment. In 

effect, are we terminating all four national emergencies that have been 

declared and are still in existence?

Mr. Mathias. That would be the effect of this bill.

Mr. Moorhead. Do we wait a year for that, from now, or would it 

be terminated at once?

Mr. Mathias. It would be a year from now. And let me explain that 

grace period. That was worked out by Senator Church and myself 

with President Ford. We had originally thought of a somewhat shorter 

grace period.

It would give the executive branch a full year in which to consider 

if there are any of the powers, the emergency powers that are comprehended within the scope of the bill, which the administration reels 

ought to in fact become part of the regular power of the Presidency; 

and to give the Executive an opportunity to come to the Congress and 

say, “Let us put this particula r power in the normal function of the 

President,” which is subject to congressional oversight, and congressional budgetary procedure. That was why we left tha t period of a 

year.

This is not trying to wrest any powers away from the President, but 

to work cooperatively with the President in returning this country to 

a peaceful state. Both at law and in fact.

Mr. Moorhead. That goes to one possible question tha t could come 

up. W hat if the President believes it is a national emergency, and the 

Congress does not? Is there a method described here for Congress 

to terminate th at ?

Mr. Mathias. Tha t of course is precisely what we have had to 

grapple with, that the President in the exercise of his Executive function could proclaim a national emergency, and the Congress would then 

review’ the facts upon which the proclamation was pred icated; and if 

in effect the facts did not justify the continuation of emergency powers, 

would not agree to prolong the existence of the emergency.

Mr. Moorhead. In section 101(b) is the phrase “any national emergency in effect means a general declaration of emergency made by the 

President pursuant to a statute a uthorizing him to declare a national 

emergency.”

Does that cover everything, every situation under which there could 

be a Presidential declaration ?
27

Mr. Mathias. Perh aps Senator Church would like to comment in 

depth on this, but we did review this possibility of defining what national emergencies might be comprehended; and we decided you would cause more trouble by trying to define it than just saying “national emergency”, whether you are talking about a physical emergency, or a 

physical invasion of the land ; or are you talking about some environmental disaster that may overcome the country. We felt it would be wrong to try to circumscribe with words with 

what conditions a President might be confronted.

Mr. Church. I just want to add, Congressman Moorhead, once we 

got into tha t thicket it became evident that we would be creating more

* problems than we would be solving. And since the likelihood in the future is that Congress will perceive an emergency when the Pre si­ dent does, we were principally concerned in establishing statutory procedures to govern future emergencies that would insure Congress

* the proper legislative role. Presently the declaration of a national emergency is left entirely to the President. Vast powers can be triggered by such a declaration, and 

Congress has no method to pass judgment as to the nature, the extent of the emergency, nor its duration. We think that this bill remedies 

all of those present deficiencies in the law.

Mr. Moorhead. There is one question that I raised, or referred to 

Chairman Rodino. I ’m a little bit curious whether it is necessary under this legislation to specifically tell either the Senate or the House how the resolution should be handled. In other words, if a resolution is passed, say, by the Senate and comes to the House, the committee to which it is referred has only 15 days in which to act on the resolution. 

They have no discretionary power whatsoever, as I understand it, in 

the referral.

And the House has 3 days in which to act, unless by majority vote 

they put it off. Is there a real necessity that the House or the Senate be told how 

they should handle such a resolution if the other body has acted on it?

Mr. C hurch. Perhaps there is a larger necessity in the Senate than 

in the House. Our major concern was that if the Congress felt strongly, or if there was a sufficient number in the Congress who believed that some future national emergency was quite unjustified and 

was being used by a President as the vehicle fo r trig gering vast execu-

* tive powers, and imposing Government by Executive order upon the American people, there ought to be some assurance in the law that t hat 

matter should come to a vote in both Houses.

We have greater difficulty in that regard because of our rule of

* debate.

Mr. Moorhead. That process is being reduced.

Mr. Mathias. That problem may be less tomorrow than it is today, 

but it will still lx* there.

Mr. Church. It will still be there.

So, we want to put these provisions in and make certain that in that 

eventuality it would be assured that both Houses could come to a vote 

on the question of the emergency and its extension.

Mr. Moorhead. Under title II I on declarations of war, what was the 

purpose of putting this provision in the bill? Also, is it consistent with 

the War Powers Act that was passed last year ?
28

Air. Church. I think it's not inconsistent with that provision. As I 

recall, we thought that some language would be needed in the bill to 

make clear th at national emergencies can be put into effect in different 

ways; the President may declare them, or the Congress by a declaration of war create a national emergency. And whatever emergency 

powers exist in the law would then be made available to the Executive.

That was the purpose, as I recall, for including the language, simply 

to make it clear that among the emergencies we had in mind of course 

was the congressional prerogative creating emergency through a declaration of war.

Mr. Mathias. It would be really redundant to leave any question 

in anyone’s mind that afte r a declaration of war the President would «

thereaf ter also have to declare a national emergency. Tha t just removes any question about that.

Mr. Moorhead. In section 501(c) you have a reporting requirement 

set forth, that the President within 90 days report to the Congress total •

expenditures related to the emergency.

Could the total expenditure language be in effect a loophole ? Should 

there be a more detailed breakdown ?

Mr. Church. I’m not personally wedded to the language here, it may 

very well be tha t the committee could find more exact language tha t 

would improve the bill.

Mr. Moorhead. We have a whole list of statutes here, some of these 

are to be repealed, and some are listed to be continued. Can you tell 

me how you selected those particular statutes ?

Mr. Mathias. That was done by agreement with the Executive. The 

ones to be repealed are ones th at are clearly obsolete, clearly ones that 

have no relevance at all to our time and our Government, and ones that 

everyone agreed should be repealed.

The ones that are excepted, or the ones tha t were p articularly requested by the President to be excepted because he felt they were so 

vital to the operation of Government at this time th at he didn’t want 

to take a chance that they might not be extended, or revised during the 

1-year grace period.

Mr. Church. Let me say this, we wrote these exceptions into the law 

with very considerable misgivings. We would have preferred the original Senate bill which would in effect have terminated all emergency 

powers that under the old Emergency Act of 1933 are still in effect.

That would have had the effect of repealing all those old emergencies, *

giving the Executive 1 year, then, in which to come to the Congress 

and say, “Among the emergency powers we think certain powers should 

be written into permanent law,” and allow the Congress then to make 

the decision. ♦

But in order to reach an accommodation tha t would permit unanimous action in the Senate and give the promise of a Presidential signature, we did make these exceptions. They thought these particular 

laws were so vital, they didn’t want them placed in a questionable 

status.

I would hope that this committee, after it gives close consideration 

to the whole question, would avoid extending the exceptions. To the 

extent that you start extending the exceptions, you begin undercutting 

the whole purpose of the effort, which is to return the Government to 

normal on a constitutional basis, and restore to the Congress its full 

role in the legislative branch.
29

Mr. Moorhead. Th at comes to another point. I understand that the 

Defense Department is interested in having that list expanded.

Mr. Church. Yes, and I think other executive agenices, the more 

they look at it, the more they will be inclined to add additional emergency statutes they would like to have excepted; but I believe that 

would be a serious mistake.

Mr. Moorhead. Well, I would presume when we look at the list we 

will be able to exclude some items, or one or two we might feel they 

should add; perhaps the committee should make that judgment.

Mr. Church. Of course. I was simply expressing my own personal 

view after we had worked this bill into its present shape.

Mr. Mathias. We would really personally, both of us, prefer to see 

these operate within the year's grace period, and then let them be 

voted up or down by the Congress. We only did it. as Senator Church 

said, out of our concern that the bill be passed in a posture the President would approve.

Mr. Mooriiead. Thank you.

Mr. F lowers. Let me say something to the m atter of procedural departure that I guess I set up here: the members who have not yet had 

a shot at Senator Mathias, I would ask them to hold, and we will ask 

Senator Church to go forward with his statement.

TESTIMONY OF HON. FRA NK CHURCH. A U.S. SENATOR FROM THE 

STATE OF IDAHO

Mr. Church. Mr. Chairman, I think this is very kind and I appreciate your giving me equal time, but actually-----

Mr. F lowers. 1 should have done this initially.

Mr. Church. Actually, to expedite your work, Mr. Chairman, if I 

submitted my written statement, we could spend our time with 

questions.

Mr. Flowers. It will certainly be received, Senator, and thank you 

and Senator Mathias for your excellent work on this effort which was 

needed for a long time, and that you have so forcefully brought to 

attention,

I f you want to summarize your statement ?

Mr. Church. I would like to make one statement. Mr. Chairman.

Shortly afte r we began to investigate this whole problem of emergency powers, and began to ascertain how very large these powers 

were and how if a President chose to invoke the powers, lie could 

really usurp the Congress and govern the country by Presidential 

edict. It became apparent to us that if we were ever to get back to a normal constitutional balance, and put these emergency powers on the 

shelf until genuine new’ emergencies arose; if we were ever to control 

the declarations of emergencies and put the Congress in a position to 

participate in those decisions in the future, we would have to secure a 

Presidential acquiescence inasmuch as his veto in all likelihood could 

never be overridden in ma tters of this kind.

And tha t is why we did make concessions, and tried to cooperate 

very closely with the Executive. That is why we organized our committee on a clearly bipartisan basis. And we were able to secure a

52- 2 IS — 75-----3
30

Presidential agreement that in principle he would be willing to cooperate in putting into effect legislation of this kind.

So, I believe this is a workable way to get back on the rails again, 

and I do think tha t it is a te rriby important matter, if we are to restore the Congress to its constitutional role.

Mr. F lowers. Thank you very much, Senator.

Mr. Mazzoli, do you have any questions?

Mr. Mazzolt. Thank you, Mr. Chairman, T would; and I thank the 

Senators for their excellent testimony. I just have a couple very brief 

questions.

As I understand from Chairm an Rodino’s testimony, Senator, he 

indicated the form of concurrent resolution in the emergency would »

be to continue or to terminate.

Now, is it your understanding it could be drafted in either form, 

or would it be drafted in one form, tha t is to provide for termination, which would, if it was defeated, mean a continuance. I ’m curious •

about this, just what is intended, Senator Church.

Mr. Church. As I recall, our original bill would have limited anv 

futu re emergency to 6 months, at the end of which the Congress would 

have to act in order to extend the emergency. So, we were thinking 

then prim arily in terms of an affirmative action by the Congress to 

extend the emergency, in which case it could not be extended for more 

than a 6-month period.

We had in mind the rather dramatic illustration of the Second 

World Wa r in England, where the Parliament—much more mindful 

of a long struggle with the Kin g to secure its own prerogative—restricted the Emergency Act to 30 days at a time, even when England 

was hanging by a slender thread, the Parliament was unwilling to concede these powers to the executive for more th an 30 days at a time.

We thou ght 6 months was a reasonable period, and we wrote the 

hill in tha t fashion. The Executive took exception to this, and in try ­

ing to work out an acceptable formula we changed the bill so tha t now 

what is really contemplated is a negative action. The President would 

declare the emergency, but the Congress would have the power to 

terminate it.

Mr. Mazzolt. Right.

Mr. Church. Which procedure would assure the opportunity for a 

vote.

Mr. Mazzoli. Which vote of course, if it failed, would be a round- •

about way of saying the emergency continued.

Mr. Church. Yes, continued.

Mr. Mazzoli. Thank you. Senator, either one, whichever might 

feel—on page 2 of the bill, the definition, I guess, “any national *

emergency in effect”, line 12, “means a general declaration of emergency made by the President pursu ant to a statu te authorizing him to 

declare a national emergency.”

Now, I'm curious, does t ha t simply refer to title II . the President, 

purs uant to statu te authorizing him to declare a national emergency, 

is that in effect a reference to title II ?

Mr. Mathtas. There are other authorities, beyond title II , which 

refer to the President’s proclamation of emergency.

Mr. Mazzoli. And then. Senator Mathias has led me to the other 

question, in your judgment, would the four existing emergencies th at
31

are on the book now still be emergencies or at least be the basis on 

which a President could declare an emergency u nder this law i f it is 

in effect ?

Mr. Mathias, These emergencies could terminate 1 year from the 

effective date of the act.

Air. Mazzoli. And if they had—I guess what I'm tr yin g to drive at 

is, would this law that we now have before us, contemplate economic 

as well as military ?

Air. AIatiiias. Yes; and that is why we did not, as T said to Air. 

Aloorhead earlier, why we didn’t attem pt to define it specifically because we were afra id we would circumscribe the President's constitutional powers.

Air. Ciiurch. We were faced with a technical problem here. Given 

the state of the existing law, the President does have and has exercised 

the auth ority to declare an emergency, and it was not entirely clear 

that the Congress could repeal a declared emergency without the concurrence of the President. And we thought rath er th an raise that question, we would approach it by simply repealing the statutes that are 

applicable to those and were triggered by those past declarations, in 

effect put them back on the shelf. It comes out the same way, and in 

effect it terminates the existing emergencies and keeps the slate clean.

Air. AIazzoli. So, in the event a future President would be confronted by an economic problem, conceivably that could be a basis for 

his decision, and subject to our judgment, of the Congress?

Air. Church. Yes.

Air. AIazzotj. One final question, Senators. On page fi of the bill, 

section 401 indicates that once a President declares a national 

emergency, there are no powers made available to him, or his people 

unless he specifies furthe r the provisions of law under which he would 

act, or his agents would act.

And I assume, is t hat not correct, that refers to the 400-plus s tatutes tha t are strewn around. And if that assumption is correct, my 

other question is, would there be, would there be a continuation of 

these laws, and would that be published?

Air. Ciiurch. One of our proudest accomplishments, when your committee was engaged in weightier matters, was to prepare a compendium of these statutes which we believe should be repealed. The 

Justice Department was unable to supply us with such a compendium, 

and it was only after we found that the code had been computerized 

by the Air Force that we were able to get the raw material for the 

code, and then with the help of some very distinguished legal scholars 

the compendium was completed and published; and it of course is 

available to your committee.

Air. AIazzoli. Th ank you very much.

Mr. Mathias. I thin k your counsel, Air. Shattuck, has a copy. It 

was a best-selling item for a while.

Air. AIazzoli. Thank you very much.

Air. F lowers. Mr. Fish?

Air. Fisii. Thank you, Air. Chairman.

Senators, either one of you that is in good voice—or poor voice—can 

answer if you wish. Am I to understand that righ t now. absent this 

legislation, a national emergency that was triggered in 1933 is still in 

effect. And that a President of the United States could invoke emer-
32

gency powers under some 470 separate pieces of legislation right now ?

Mr. Mathias. That’s eorrect.

Mr. Fjsh. I think that makes a strong case for the necessity of this 

legislation. Title II . entitled “Declaration of Future National Emergencies.” under section 201(a). grants the President the initiative to 

declare a national emergency; and section 202 deals with how it 

should be terminated. It is to be terminated (1) by the Congress by a 

concurrent resolution; or (2) when the President issues a proclamation 

terminating the emergency.

Now, what if there is a disagreement here? Let’s say Congress is 

successful in terminating bv concurrent resolution—I gather tha t is 

veto-proof—and within a few days the President once again proclaims 

a national emergency.

Mr. Church. We did consider that possibility and saw no way 

around it. But we thought in the future, if we reached a point where 

the Congress ami the President were in serious disagreement with respect to the need to continue a national emergency, the majority of both 

Houses of Congress voted to terminate an existing emergency, it would 

be very unlikely for the President to turn around and reinstate it 

through a new declaration.

But of course in the event that he did it would again lie the right 

of the Congress to terminate the second declaration, as it terminated 

the first.

Mr. Fish. So. that would have reference, then, to section 202(b) 

which states that “Not la ter than 6 months after a national emergency 

is declared each House of Congress shall meet to consider a vote and 

“not later” means it would be within 6 months, not outside.

Mr. Church. That’s the outside.

Mr. F ish. 1 suppose tha t is one of the areas in the relationship between the Federal branches that requires a certain amount of civility 

and rational behavior.

Mr. Mathias. Tf a President couldn’t summon up this much support 

in the Congress for the existing emergency condition, it would be unlikely tha t he could mobilize the country itself to respond to the 

emergency.

Mr. F ish. I agree with you, I just thought the question ought to be 

on the record. One further question. What if the President declared a national 

emergency within the 1 year grace period spelled out in the 

legislation?

Mr. Mathias. I think it would be clearly subject to all the provisions 

of the act.

Mr. Church. T do. too.

Mr. Mathias. The 1-year grace period really relates only to the four 

existing states of emergency that have previously been declared.

Mr. Church. This was our intention. And if you find tha t the working of the bill leaves this matter ambiguous, I thin k it should be 

clarified.

But our intention was the bill should take effect in all respects, except for the shelving of the emergency powers at the time of its enactment. The grace period was to enable the Presiden t to come up and 

plead the case with Congress for converting such emergency powers 

as he felt ought to be written into permanent law before they were
33

shelved. And for all other purposes. I would think, the effective date 

would be the date of enactment.

Mr. Fish. Mr. Chairman, I think it is very valuable to have that statement by the principal authors of the legislation on the record. One final matter refers to title VI. I just regret that only seven ex­ isting statutes are repealed, out of the 470 but I understand we will have a chance to examine the balance. I would just like to pose the question, have you in your 2 years of hearings and study of the problem, come up with any suggestions on codification, or simplification. or would it be your preference to repeal more ?

Mr. Matiiias. Yes. I think probably more of them could be repealed and summoned up by Congress at a la ter date. Again. I refer to what Senator Church said about the necessity for coming to terms with the Executive on this because you can't end the existing emergencies with ­

out some Executive cooperation. But I think we would both wish you well if you could broaden the 

list of those to be repealed.

Mr. Church. I would like to also mention in this regard that while our list of outright repealers is limited, as you pointed out, Congressman Fish, other laws which ought to be repealed will be dealt with by the House Committee reviewing deadwood legislation; and perhaps they can eliminate furthe r deadwood in the statutes.

Mr. Mathias. In the area of repealed laws, of course, is the famous, 

or perhaps the infamous power of the President to intern American citizens, a statute which the Congress thought at one time it had re­ pealed. but which this committee discovered it had not repealed. A President can declare an area 1.500 miles within the coastline as a military zone, and can intern citizens as the American Japanese descendants were interned in World W ar II.

Air. F ish. I don't want to belabor this. Senator Mathias, but did the testimony in the hearings before you r select committee in the Sen­ ate reveal whether or not any President has ever invoked those laws?

Mr. Matiiias. Yes, indeed, they have been. Most of them have been exercised one time or another. Fortunately the exercise was generally related to crises which gave rise to the power. But the ihere fact that they are lying there, available for use, is of course a great danger. And it’s not just a theoretical danger. The Weimar Republic largely foun­ dered because of the use of emergency powers, not because of inherent defects in the constitution, but because unrevised emergency powers 

undermined the constitution.

Mr. Fisti. Thank you very much.

Mr. F lowers. Just to comment; had there been a trial in the Senate 

last year, there might have been dependence placed upon those.

T call on Mr. Pattison.

Air. Pattison. I would just like to say, it is no surprise to me th at it 

was the Army that knew where all the statutes were.

Air. F lowers. The A ir Force.

Air. P attison. The Air Force.

Air. F lowers. You have no questions?

AI r. P attison. No.

Air. F lowers. Let me say again to both of you distinguished Sena­ tors, we appreciate very much the elucidations given us this afternoon, and you certainly show your wealth of knowledge on the subject, and
34

I think you have brought us up to date with your work the last year; 

we thank you very much for it.

Mr. Church. Thank you very much, Mr. Chairman, for the opportun ity to appear. We are both pleased with the interest you are showing, and the fact th at you will be moving ahead with this legislation in 

an able way.

Mr. F lowers. We will certainly do that. I don't know whether it will 

be in an able way, but we will be moving forward.

Mr. Mathias. Mr. Chairm an, if there is any way in which either 

one of us personally can be of assistance, or the staff of the Senate committee can be of assistance, we are on call.

Mr. F lowers. Thank you very much, Senators.

Mr. Church. Thank you, Mr. Chairman.

[The prepared statement of Hon. Frank Church follows:]

Statement of IIon. Frank Church, a U.S. Senator From the State of Idaho

Mr. Chairman, I am pleased to be batting number two in the lineup to Senator 

Mathias today. The work of this committee lias been a particular pleasure for 

ine because of the opportunity to work with Senator Mathias and because of the 

bipartisanship which lias characterized our work from the start. Our work has 

truly been above partisan considerations and—to a remarkable extent—above 

the contentions that sometimes exists between tlie Legislative and Executive 

brandies. Perhaps all of us sense a special need to prepare ourselves for an 

uncertain future with a most careful regard for the Constitution.

The special committee lias held extensive hearings seeking the views and advice of the country’s most distinguished authorities on constitutional government in time of crisis. In addition to scholarly authorities in the fields of political science and the law, the special committee sought the counsel of all the 

former Attorneys General and two former Supreme Court Justices, as well as 

many distinguished lawyers.

The committee also obtained the views and opinions of each of the three 

branches about how to best meet the problem of emergency rule. We thought it 

was particularly necessary to obtain not simply the present day perspective, but 

also the perspective of those who have served in previous administrations, Congresses, and courts over the past 41 years of emergency rule. It was particularly 

helpful to have views of those who served as both Attorney General and Supreme 

Court Justice. We had the opinion, of course, of Justice Jackson in the most 

important Youngstown Steel case. We are fortun ate to have a number of Attorneys General who have served in many capacities and not only in the executive 

branch. A number of this country’s most distinguished law schools have on their 

faculties men who have served their Government in the executive branch or in 

the Judiciary or as stnff consultants to congressional committees. In addition 

we sought the advice of each Senate Committee with authority over the pertinent 

statu tes. This broad perspective over the four decades of emergency rule was 

absolutely vital in order to consider the problem in a context that, of course, 

would include the immediate concerns of the respective branches but also the 

test of history and considered reflection on the part of those who have been 

through the experience and could objectively judge. Many of these views and 

opinions ar e contained in the published hearings of the committee. Considerable 

valuable advice was given in study sessions at law schools or at private meetings 

held by members of the committee over the past two years.

On the basis of the suggestions and perspective gained from these hearings, 

and from two intensive staff studies of emergency power statutes and Executive 

orders, and upon the basis of the da ta, advice, and counsel supplied by the executive branch, the special committee, working with the executive branch at every 

step, drafted the legislation now before you. Let me review the bill and give 

you some of the thinking behind it.

Title I of Chairman Rodino’s Bill. H.R. 3S84, terminates the four existing 

declared emergencies one year from the date of enactment of the Act. A minor 

technical amendment has been made in this title at the request of the Office of 

Management and Budget, but otherwise it reads as it passed the Senate.

The one year grace period is to allow time for the enactment of permanent 

authority to replace, where necessary, emergency authority now being used by
35

the executive. Shorter periods were once considered and at one time this section 

read "271 days” but the present provision is acceptable to all who have reviewed it. Title II deals with future national emergencies and begins by defining an emergency as a state wherein the President determines tha t it is "essential to the preservation, protection and defense of the Constitution, and is essential to the common defense, safety or well-being of the territor y and people of the United States.” The committee intentionally chose language which would make clear tha t the authority of the Act was to be reserved for matters which are "essential” to the protection of the Constitution and the people. This authority will not be available for frivolous or partisan matters nor, for tha t matter, in cases where important but not "essential” problems are at stake. Only in the most unusual circumstances can the Constitutionally ordained role of the Congress be bypassed. This section also provides that this Act shall constitute the only authority under which a national emergency can be declared and then only in accordance with the Act. Subsequent legislation can sui>ersede this Act only in specific terms and expressly. The President is required to publish his proclamation of a 

national emergency in the Federal Register and tran smit it immediately to 

Congress. Section 202 contains the crucial sections which detail the role of Congress and, in effect, reclaims Congressional powers now emasculated. But before discussing 

these sections in detail let me say a word about options we faced. The special committee could have recommended an outright repeal of the existing emergencies. This, in fact, was the initial inclination of some members of the committee. But after a series of hearings and when the committee had a fuller understanding of the long history of emergency government in the United States and other nations, we came to the conclusion that it would be irresponsi­ ble to propose the termination of existing emergencies and th e laying dormant of existing powers without providing a means for declaring and terminating future emergencies. We were aware that, for example, Great Britain had fought the entire Second World War under emergency authority given to Prime Minister Churchill only 30 days at a time. We initially thought in terms of 30. GO or 99 days as the proper length of an emergency without benefit of Congressional 

concurrence. The version of the National Emergencies Act first reported by the Senate Government Operations Committee contained a provision in which emergencies were to continue for six months. Moreover, at the end of six months, emergencies were to be automatically terminated unless extended by the Congress. In that event the President would have to proclaim a state of emergency again and, this time obtain Congressional approval only for another six months at a time. This provision caused concern in the Executive branch. Although we would have preferred the bill as w ritten, a compromise was worked out which the Sen­ ate found acceptable. The present formula provides tha t the President can pro­ claim a national emergency which could continue indefinitely. However, the Congress may at any time reject by Concurrent Resolution the President’s use of these powers. Moreover, provisions were written into the Act which give every possible assurance tha t the Congress will vote aye or nay on the continuation of the emergency at the end of six months and at six month intervals thereafter. While a statute cannot require tha t the two Houses vote, it can provide special 

rules to help assure a vote. The Act requires tha t a resolution to terminate a national emergency shall be referred to the appropriate committee of the House or the Senate and tha t one such concurrent resolution shall be reported out by such committee together with its recommendation within fifteen calendar days, unless such House shall other­ wise determine by the yeas and nays. Any concurrent resolution so reported shall become the pending business of the House in question and shall be voted on within three calendar days unless otherwise determined by yeas and nays. Pro­ vision is made to make a resolution passed by one House the pending business of the other within three calendar days. In the event of a disagreement the com­ mittee of conference is required to file its report within six calendar days afte r refe rral and the resolution must be acted on by both Houses not later than another six days. These rules are specifically designated as an exercise of the rulemaking powers of the Senate and the House and deemed a part of the 

rules. Title IV is the next major section and it provides tha t the President must specify the provisions of law under which he intends to act and restates a pro-
36

vision in T itle I re qu ir in g pu bl ic at io n of decla ra tions an d ex ec ut iv e or de rs in th e 

F ed era l Reg iste r. T it le V re quir es an ex tens iv e sy stem of re co rd ke ep ing by th e 

P re sid en t an d ex ec ut iv e ag en ci es so th a t th e Con gress an d th e pu blic may know 

w h at ac tion s ar e ta kin g plac e. Al l sign ific an t ord er s m us t be tr ansm it te d to th e 

Con gr es s an d aft e r ea ch th re e m on th i>eriod duri ng an em er ge nc y th e Pre si den t 

m ust re jx jr t to the Con gress all ex pe nditure s in cu rr ed by th e go ve rn m en t duri ng 

th a t pe riod . A fter an em er ge nc y a fin al re port of ex pen diture s m us t be filed.

T itle VI co nt ai ns tw o se ct io ns . Se cti on 601 re pea ls sta tu te s which bo th th e 

E xec utive an d Leg isla tive br an ch es deem to be ob solet e. W hile th e list is no t 

ex haust iv e, th e re m ai nd er w ill be dea lt w ith by th e Hou se Co mmitt ee revi ew in g 

de ad woo d legi slatio n, th e Com m itt ee on Law Re vis ion.

Se ctio n 602 ex em pt s from th e pr ov ision of th e N at io nal Emer ge nc ies Ac t six 

sta tu te s th a t th e Exe cu tiv e bra nch fo un d so cr uci al to th e co nt in ue d op er at io n of 

th e go ve rn m en t as to re quir e th e ir c on tinu at io n. All oth er em erge nc y sta tu te s are 

m ad e dorm an t by th e pr ov is io ns of T itle III bu t th e six sta tu te s in th is section 

co ntinue in fu ll for ce. T his se ct ion, too, is th e re su lt of comp romi se. W hile we 

wou ld ha ve pr ef er re d to co ve r al l em erge nc y st atu te s, th e co ur se ag re ed to ca lls 

th e att en ti o n of each co m m ittee of th e Hou se and th e Sen at e to th e need fo r 

perm an en t law in th es e are as, and to re qu ire th a t th es e co m m itte es stud y th e 

l» er tin en t laws an d re por t to i ts re sp ec tive H ou se w ithin 270 d ay s.

The mos t sign ifi ca nt sta tu te in Se cti on 602 is th e T ra din g w ith th e En em ies 

A ct S enato r M at hi as re fe rr ed to ea rl ie r. A no th er sta tu te re la te s to th e au th o ri ty 

of th e P re si dent to ca ll up th e Re serves . O th er st atu te s re fe r to pu rc ha se s an d 

contr acts fo r pr op er ty , ass ig nm en t of claim s and th e tr a n sfe r of co nt ra ct s.

It. h as been ou r feeling th a t it is appro pri at e to li m it th e ex ce pt io ns to th e Ac t 

to th e sm al le st iw ssible num be r of sta tu te s an d to pre ss fo r co rr ec tive legi slat io n 

ev en in th os e cases. W hile im port ant go ve rn m en tal acti vit ie s are inv olv ed, th ere 

is li tt le re as on to co ntin ue as th e und er pi nn in g of ex ec ut iv e ac tion br oa d em er ­

ge nc y auth ori ti es such as th e T ra din g w ith th e En em ies Act. I ha ve ev ery confidence th a t th e Co ng ress will act sw iftly in ev er y ca se w he re pra ct ic es buil t up 

un d er em er ge hc y auth ori ty a re re as on ab le and ne ce ss ar y.

Mr. C ha irm an , by th is le gi sl at io n we ha ve so ug ht to re st ore th e Con gress to 

it s or ig in al co nst itutional pl ac e in pr ov id in g fo r effecti ve go ve rn m en t duri ng 

tim es of w ar or seve re cr isis. W e ha ve also so ug ht to ass ure th a t ea ch of th e 

bra nch es ca n us e its resp ec tive po w er s an d carr y out it s as sign ed re sp on sibi lities 

in o rd er to co nt ribu te to a comm on pu rp os e of nati onal se cu ri ty . I believe we 

ha ve succeeded.

Mr. Flowers. We will recess the hearing on this particu lar matter.

[Whereupon, at 3:15 p.m., the subcommittee adjourned, subject to 

the call of the Chair.]
NATIONAL EMERGENCIES ACT

TH U R SD A Y , M A R CH 13, 19 75

House or Representatives,

Subcommittee on Administrative L aw

and Governmental Relations

or the Committee on tiie J udiciary,

'Washington, D.C.

The subcommittee met, pursuant to notice, at 1:30 p.m. in room 2141, 

Rayburn House Office Building, Representative A alter blowers 

[chairman of the subcommittee] presiding. Present: Representatives Flowers, Danielson, Jordan, Mazzoli, 

Moorhead, and Fish. Also present: William P. Shattuck, counsel; Alan F. Colley, Jr., as* 

sociate counsel.

Mr. F i dwers. Gentlemen, we will proceed.

Might I say on behalf of all of the committee, welcome to Mr. Elting 

Arnold who is senior counselor to the General Counsel of the Treasury : Mr. Stanley Sommerfield, Chief Counsel, Foreign Assets Contro l; 

Air. Dennis O’Connell, attorney in the Office of the General Counsel; 

and Mr. Arthur Schissel, chief, legislative section, Office of the General 

Counsel. I believe we have all of you gentlemen here today, and as you are 

aware we are continuing our inquiry into H.R. 3884, a bill, “to terminate certain authorities with respect to national emergencies still in 

e fleet.'’ We particularly wanted to hear from Treasury first, of the Departments tha t would be affected, because we are cognizant of the impact 

that it might have. Certain procedures th at are now in effect as a result of, for instance, the national banking emergency and matters of 

that sort. So, without further ado on my own part, unless my colleague from 

Texas has a word or two. we will proceed to hear you gentlemen.

Ms. J ordan. No; I just appreciate you gentlemen coming.

Mr. F lowers. You may proceed.

TESTIMONY OF ELTING ARNOLD. SENIOR COUNSELOR TO THE GENERAL COUNSEL. U.S. DEPARTMENT OF THE TREASURY. ACCOMPAN IED BY STANLEY L. SOMMERFIELD, CHIEF COUNSEL,

FOREIGN ASSETS CONTROL: DENNIS M. O’CONNELL. ATTORNEYADVISER, OFFICE OF THE GENERAL COUNSEL; AND ARTHUR

SCHISSEL. CHIEF. LEGISLATIVE SECTION OF THE GENERAL

COUNSEL

Air. Arnold. Air. Chairman, we are very glad to be here. W ith your 

permission I would like to read a brief statement which we have 

prepared.

(37 )
3S

It is a pleasure to be here with you today to discuss the proposed 

National Emergencies Act, H.R. 3884.

As this committee is aware, this legislation is the outcome of 2 years 

of study and hearings conducted by the Senate Special Committee on 

the Termination of the National Emergency. The Treasury, as well as 

other executive agencies, has worked with the special committee in 

evaluating existing emergency powers and statutes. Among other ma tters, careful attention was given to the question of which statutes 

should be repealed as obsolete, which should be recast as permanent 

legislation, and which should be retained for use on an emergency 

basis.

The amended version of the Senate national emergencies bill, intro- •

duced in the last Congress, which passed the Senate on October 7,1974, 

reflected the recommendations of the executive agencies. The Director 

of the Office of Management and Budget wrote to the chairman of this 

committee on December 12,1974, that the Senate measure, as amended, •

was acceptable to the administration with the exception of one point 

which has been met in H.R. 3884.

Mr. Chairman, however, I have just been informed tha t the Office 

of Management and Budget is currently reviewing the proposed legislation to determine whether any modifications may be required in the 

opinion of the administration.

With the change just mentioned, H.R. 3884 is substantially identical 

to the Senate passed bill on which OMB submitted its report in December. The Treasury Department considers tha t this legislation represents a workable approach to the national emergencies question. P erhaps it may be helpful to highlight features of this bill which the 

Treasury regards as especially important.

Fir st, the bill provides a full year in which the executive branch and 

Congress can make the adjustments which may be necessary or desirable in relation to the term ination of emergency powers provided for in 

section 101 of the bill. Given the n ature of the legislative process and 

the number of statutes and programs tha t may require consideration, 

this appears to be an entirely reasonable time for the purpose.

Second, the Treasury strongly believes that the exemption of section 5(b) of the Trading With the Enemy Act from the bill’s provisions terminating emergency powers is highly desirable. This exemption is essential to the continued effectiveness of the foreign assets 

control program administered by the Department. *

In addition, we believe tha t section 5(b) should be retained for 

emergency use to deal with international financial and investment 

problems that may arise in the future.

With respect to the foreign assets control program, termination of *

the emergency basis fo r use of section 5(b) would seriously affect the 

negotiating position of the United States with regard to controls 

which regulate transactions with several foreign countries and their 

nationals. Among other things, these controls freeze significant 

amounts of Chinese and Cuban assets to be held for an eventual settlement of the claims of U.S. citizens whose property in the Peoples Republic of China and Cuba has been seized without compensation. In 

this regard, it also appears tha t constitutional problems might arise 

with respect to the valid ity for continued blocking of assets of foreign 

countries if all national emergencies or authorities thereunder were 

terminated.
39

Finally, the provision of the bill providing for termination of fu­ ture national emergencies by concurrent resolution is, in our judgment, preferable to the original proposals to terminate emergencies at a date certain. We feel th at section 202 of the bill provides for adequate congressional control over the period for which future emergency declarations may remain operative, without unnecessary inflexibility. In sum, the Treasury believes t ha t H.R. 3884 strikes a reasonable balance between the need to resolve questions with respect to emer­ gency powers and the need to preserve flexibility for dealing with crises 

that may occur in the future.

Mr. F lowers. Thank you.

Mr. Arnold. Mr. Chairman, we will do our best to answer any questions that the committee may have.

Mr. F lowers. T hank you. Do any of you other gentlemen have a statement at this point, or 

are you available for questions?

Mr. Arnold. This is the only statement.

Mr. F lowers. We have a team effort here this afternoon. Very good. Basically, then, your statement in gist is tha t you approve of the bill as currently d rafted and pending before this subcommittee, which contains the exemptions which you as a De partm ent are interested in. 

Is tha t correct ?

Mr. Arnold. Yes, sir.

Mr. Flowers. In that regard, you are talking about the Trading 

With the Enemy Act, and the Bank Emergency Act ?

Mr. Arnold. We are primarily. There is a statute relating to cus­ toms m atters of a relatively incidental nature, which was referred to in our letter to your committee last fall, which has some interest. But it is something tha t can be solved much more readily than any major 

change in these other matters.

Mr. Flowers. In our discussions with the two prime Senate spon­ sors last week, and in my own deliberations over this matter in p rep­ aration, of course, it occurs. I think, if you are trying to clean up the record book, so to speak, which is what we are trying to do, and 11 liink it needs doing—the best possible solution would be a complete solu­ tion : that is, to absolutely terminate all existing emergencies. But you people feel that it is absolutely necessary for these exemptions in your 

own area?

Mr. Arnold. We do, sir.

Mr. F lowers. Let us ta lk about these two particular ones, then. As far as the Trading With the Enemy Act, would there be any alterna­ tives, legislativewise, or would there not be an alternative to exemptions under the provisions of this act ?

Mr. Arnold. We do not believe, Mr. Chairman, tha t there is any alternative that, could be readily worked out in time to permit expe­ ditious passage of the pending legislation. The technique adopted in the bill, with which we are in accord, is to set aside certain statutes, including section 5(b) of the Tra ding M ith the Enemy Act. lor prompt subsequent consideration in which the Treasury would be fully prepared to join. But we have not formulated, as of this time, any specific proposals. If the bill passes, we certainly would—and I did not mean to use the “i f” in any negative sense—if the bill passes, we would certainly be ready to join with the committee and th e Senate in working out, hopefully, some acceptable solution.
40

Mr. F lowers. I do th in k th at is a con struct ive suggestion.

Now, t he o ther m atter of some imp ortanc e to the De pa rtm ent of th e 

Tre as ur y. the Bank E me rge ncy Act o f 1933—it boggles the min d th at , 

here in 1975. th at we still find useful to opera te in ce rta in respects 

un de r a dec lare d emergency in 1933. We do see some sim ila rities on 

the economic horizons anyw ay, between 1975 and 1933, that, we are 

con cerned about. But wha t if you can. in sum ma ry and briefly, what 

pa rtic ula r pro positions does th is enab le you to deal with better than 

you would othe rwise ?

Mr. Arnold. M r. Ch air man , if I un de rst an d the s itu atio n correctly, 

an d my co lleag ues may want to correct me here somewhere, the d ifference on the int ern al bank ing side of the m atter and the forei gn side 

of the m at te r with rega rd to section 5(b) is quite pro nounced , quite 

sig nif ica nt. We are n ot. at leas t in any ma rke d degree th at I am aware 

of, depe nd ing on the dom estic side at this time. The concern th at we 

have is the results or sign ifica nce of section 5( b) wi th rega rd to cer ­

ta in matters in the foreig n field, notab ly the foreig n assets con trol 

reg ula tions. As I un de rst an d the proposed act —the dom estic side of 

5( b) wou ld not be repealed at this stage. It wou ld be ava ilable for 

use, but its use would l>e sub ject to all of the pro vision s of th e act gover ni ng the future decla ration of emergencies, whereas on the foreign 

side, we are ob liged by the course of histor y to rely upon an o utsta nd ing 

de claration of emergency, un til som ething be tte r, at lea st, if there is 

some thing better, can be sub sti tuted. An d this, as T see it, is the essential 

differen ce between the two side s of the ma tter, the dom estic and the 

forei gn side.

Th e act will leave ma ny emergency powe rs available to the Pr es ident, to be exercised if a nd whe n it is a pp ropr iate, in accordance with 

the t erms o f the act. T hat is the sit ua tio n on th e dom estic side. It is not 

the situati on on the foreign side.

Mr. F lowers. Th is is la rg ely the state me nt you su bm itted in connection with the Senate hearin gs on the m atter, I presume ?

M r. Arnold. Yes.

Mr. F lowers. 1 do not h ave any f ur th er questions a t t his p oint. T will 

yield to the g ent lelady from T ex as fo r w hatev er i nq uir y she would like 

to mak e before yie lding to the gen tleman from Ca lif ornia.

Ms. J ordan. Sir. on page 3 of your statem ent. T would like for you 

to edu cate me on the co ns titutiona l problem which could arise with ­

out 5(b ). You see—you r first pa ra gr ap h? Ju st e duc ate on t hat—w hat 

pro blems are you talking abo ut ?

Mr. Arnold. Yes. we can do th at . The problem is the prote ction of 

the fifth amen dment again st the t ak in g of prope rty with out d ue process 

of law. inc lud ing prop er com pen sation. Basically, frie nd ly aliens are 

prob ab ly entitled to the same pro tec tio n of t his pro vis ion of the Consti tu tio n as citizens, and I believe th at th is was cite d in substance in 

the Ru ssian Volu nte er Fleet case. 282 V.S . 481.

However , the sit ua tio n is dif fer ent with rega rd to the blocking of 

pr op er ty in time of eme rgency . Th is m atter was lit ig at ed in a case a 

few ye ars ago. Sordino v. Fe de ral R ese rve Ra ni' of N ew Yo rk . which 

is 361 Fe d. (2d) 106 (1966). A nd th e poin t, in s ho rt, is if blockin g were 

attempted un de r any other au th or ity or any othe r theo ry o f law tha n 

the existence of an emergen cy, blo cking m igh t prove to be ineffectual 

co nstitution ally. As I said earlie r, and as my state me nt indicates, th ere
41

are, for example, substantia l amounts of Chinese and Cuban assets which should, at least in the opinion of the administration, be held until property settlements can be worked out with the respective countries. Of course, in Cuba, we are not even at the same stage tha t we are with China, and with China, the principal effect of the controls today is this blocking of existing assets to lie held for a p rope rty settlement. M ith Cuba, we still have an active foreign assets control oyer transactions. But, looking at this one central aspect, it might be seriously infring ed on if there were an instant termination of the emergency. And this is one of the reasons why, in response to the chairman, although I did not mention it specifically, we feel that time is required to work out a solution here, in regard to the blocking controls under section 5(b).

Ms. J ordan. Did the Court state specifically that the amendment which says you cannot take a person’s prope rty without just compen­ sation—did the court say that tha t proviso specifically applies to friendly aliens, or is t ha t an expanded interpretation of the negotiators with those countries ?

Mr. Arnold. Mr. Sommerfield, who is with me, is more expert on the decisions specifically than I am. With your permission, I will ask him 

to respond to tha t question.

Ms. J ordan. Please do.

Mr. Sommerfield. The history is tha t the Supreme Court held, in 

about 1921, that the Congress and the administration could not take moneys that were due to R ussian citizens after the Bolshevik Revolu- 1 ion. I t was funds owing fo r the use by the United States of the volun­ teer fleet in W orld Wa r I. After the Bolshevik Revolution. Congress enacted a law providing in effect that we would not pay these Russian citizens, because of the Bolshevik nationalization of American invest­ ments in Russia. So tha t was the standing principle of law applicable to foreign assets in the United States at all times since 1921. In 1965, we were sued by attorneys for the Cuban regime, and in effect, they relied upon that decision. They said, there is no state of war between the United States and Cuba—indeed, we legally recognize Cuba to this day, although we do not have diplomatic relations with them. Consequently, the argument of the attorneys for the Cubans was that as friendly aliens technically they had a right to have their blocked assets released. We initially responded that a blocking does not “take” the assets. All a blocking does is tie them up, so that they cannot be disposed of without Government authorization. That posi­ tion was upheld in the lower court in the d istrict court. The court o f appeals sustained the decision of the lower court, but on a different theory. That court said, no. when you tie up a foreigner’s assets for an indefinite and lengthy period of time, as you have done with respect to Cuba, and for tha t matter with respect to China, tha t amounts t o a deprivation of prop erty without compensation, and normally you 

cannot do that, as was held in the Russian Volunteer Fleet case.

The court went on to say, however, that the world is no longer the old-fashioned world of black and white. There are some gradations in here; and they said, in effect, a blocking of this type, a “taking” with ­ out compensation, is justified only as under an emergency situation. I am not sure they used the words “only under.” They did not use that exact language. But the ir rationale was. blocking is justified as a reac­ tion to the provocations that the United States underwent when Castro
42

nationalized American property in Cuba, when Castro had missiles 

pointed at the United States, where we were at the verge, perhaps, of 

an invasion of Cuba. In effect, what they said was, in tha t type of situation, which is essentially an emergency situation, it is constitutional. 

They even indicated that it might, at a future date, be constitutional 

in th at type of situation to vest the prope rty; not just block it, but take 

it over and use it to pay American citizens for losses suffered in Cuba.

So, the point that we are concerned about is tha t in view of this 

rationale, you need an aura of emergency to justify a continuing blocking or even a vesting of these assets; if we lose the aura of emergency, 

and we put the blocking restrictions on a permanent nonemergency 

status, we can run into a good possibility—I do not know whether it is 

inevitable or not—there is a good possibility that the courts might 

rely on the precedent of the Russian Volunteer Fleet case, and hold 

that, if Congress has determined that there is no emergency. Accordingly there is no emergency, the courts could rule that there is no constitutional justification to take a foreigner's assets, or tie them up 

indefinitely as we do. This is what we are concerned about.

Ms. J ordan. Thank you very much. Xo furth er questions.

Mr. F lowers. Thank you.

The gentleman from California is recognized.

Mr. Moorhead. In your statement you indicate the necessity of retaining the powers in the Tra ding With the Enemy Act as a part of 

the law. Do you think tha t they should be made a part of the permanent powers of the President ?

Mr. Arnold. Mr. Congressman, I do not believe at this stage that the 

Treasury has a definite view on that. It is pretty obvious in many ways 

that some power in the executive branch to deal with sudden emergencies involving necessity of imposing blocking controls and the like 

would be desirable, but it is a subject on which we are not yet ready to 

express a definite view. We feel th at this type of question can best be 

answered if the bill passes and the respective committee with jurisdiction, and there are several items in the bill that fall in different committees, enters into the matter. At th at time it would be appropria te 

and necessary to face up squarely to the question, but I do not think 

at the moment tha t we have a definite answer for you, sir.

Mr. Moorhead. I see. Section 602(a) lists the statutes tha t are exexempt from the provisions of the National Emergency Act. What 

would your reaction be to a time limit on the exemptions of these laws?

Mr. Arnold. There is in a sense a time limit, Mr. Congressman, in 

tha t the respective committee has to make a report within 270 days. 

There is not any absolute cut-off but an expedited consideration and 

presumably, a reasonably definitive report within 270 days is contemplated by the statute.

I believe th at we feel t hat this is enough. I do not believe tha t we 

would recommend tha t there should be any flat cut-off period. The 

respective committee might conceivably recommend in some cases— 

there are five or six statutes—it could conceivably recommend a continuation without substantial change. In another case it might recommend flat repeal. We are not experts on the other statutes. I am sure 

tha t we would think in case of section 5(b) tha t some continuance or 

appropriate substitute should be found. But at this stage we do not
43

have, as I said, we do not have a definitive recommendation. I do think th at the provision for consideration and repo rt within a fixed period is a reasonable procedure under the circumstances.

Mr. Moorhead. One tiling I was wondering about. In the report to the committee on proposed emergency legislation you indicated a 1- year grace period rega rding the termination of emergency authorities 

would not be sufficient time. Now you indicate that a 1-year period might be a reasonable period 

of time.

Mr. Arnold. I thin k there are two different provisions involved here. The 1-year period relates to emergencies that would be termi­ nated bv this bill itself, and we thought tha t there would be time within th at 1-year to work out either administratively perhaps in some cases, but more likely bv congressional enactment appropriate substi­ tutes where they would be needed. This is the case, fo r example, of the customs legislation tha t I mentioned briefly. However, some more active and, in a sense, more fundamental s tat­ utes are covered by section 602 on which I pointed out the 270-day provision and expressed the view tha t was held by the Department tha t this would be a reasonable approach. So we are really considering two different categories of statutes, Mr. 

Congressman.

Mr. Moorhead. Are there any exemptions th at you feel should be in 

the law that are not listed here ?

Mr. Arnold. No, sir. I mentioned tha t the Office of Management and Budget is conducting a review. We have not been informed as to what they might have in mind. As far as the Treasury Department is con­ cerned at this time without having the benefit of OMB’s views, we are content with the law as it is drafted.

Mr. Moorhead. Do you feel that you could live under it without any 

trouble ?

Mr. Arnold. We do. We think th at, granted a reasonably careful at­ tention under section 602 by the respective committee, we can live with 

this law.

Mr. Moorhead. Than k you very much.

Mr. Arnold. Thank you.

Mr. F lowers. I recognize the gentleman from Kentucky.

Mr. Mazzoli. Thank you very much, Mr. Chairman. I apologize for not having been here for the whole extent of the testimony, Mr. Arnold, but I have had a chance to briefly go over it and perhaps you have answered these questions, I guess. That is, having reviewed this, you are satisfied th at this provides a workable handling of what ob­ viously is a very intricate an d difficult situation.

Is tha t true ?

Mr. Arnold. Yes, sir, we do. It is like much legislation. We might have preferences for some more or less restrictive provision here or there, but considering the whole problem and the necessity, or the desirability, of some overall solution, we are in accord with this 

proposed legislation.

Mr. Mazzoli. Thank you very much, sir. I appreciate it. Thank you, 

Mr. Chairman.

Mr. F lowers. Thank you, Mr. Mazzoli.

The gentleman from New York.
44

Mr. Fish. Mr. Chairman, thank you. I appreciate the testimony 

received and I think it is clear. I do not have any questions to ask the 

witness.

Mr. Flowers. Thank you, Mr. Fish. Gentlemen, I quite frankly do 

not have any questions. I f you will give me a moment to confer with 

counsel-----

Mr. Arnold. Certainly. [Pause]

Mr. F lowers. I am going to yield to our counsel, Mr. Shattuck, for 

questions.

Mr. S hattuck. I hope I am not entering into an area of conjecture, 

but. in view of your statements as to the necessity of the emergency 

basis for a blocking of assets under the previous situations tha t you 

outlined, what would be the effect of the bill’s new provisions concerning a recurrent review of emergencies in terms of assets, i f I make 

myself clear? What would happen if the Congress should have to 

consider this periodically? If at some point the Congress ended the 

emergency, then the blockage would end ?

Is that a proper conclusion ?

Mr. Arnold. It might well be, yes. sir. I think tha t is the logical 

consequence of reasoning that has been expressed here, or a t least the 

possible logical consequence. Presumably, if the Congress were faced 

with the question 3 years from now or 5 years, or whatever, in relation 

to some new blocking under a newly declared emergency it would take 

this particu lar factor in account in its decision as to whether or not to 

terminate the emergency.

I do not believe th at I can give you any more specific answer than 

that. It seems to me th at that would just, be the inevitable situation.

Mr. Shattuck. Thank you. I would like to direct to Mr. Sommerfield a somewhat similar question. As I listened to his answer, he indicated that the court indicated th at the situation, as of at the time of the 

blockage, was significant. Some sort of an emergency situation had to 

be in existence to justify the blockage or blocking of the account.

That, seems to be something that occurred at tha t time, not a continuing thing, necessarily.

Mr. Sommerfield. No: I do not think so, sir. As I understand it, my 

opinion would be this. You have to have an emergency declaration, 

a valid emergency in existence. I do not mean a factual one, but rather, 

a legal one. T hat is, you do not have to have Castro aiming missiles 

at you today. 1 ou do not have to have a state of hostility or imminent 

hostilities in effect.

What you need is a legal emergency on the books. The courts are 

not going to look behind that, at least they have not so far, and they 

have indicated they will not, subject, of course, to the possibility of an 

ultimate Supreme Court decision. But they have indicated so far th at 

they will not look behind the Pres iden t’s declaration of an emergency. 

The existing emergency is a valid emergency as far as thev are concerned. I f an emergency exists, you can justify the continued blocking 

of the assets. If you terminate it, you may not have a constitutional 

basis for continued blocking.

Mr. S hattuck. Thank you.

Mr. Flowers. I am going to yield to Mr. Coffey, minority counsel, 

for a question or two.

Mr. Coffey. Thank you, Mr. Chairman.
45

I do not mean to belabor the point, Mr. Sommerfield, but if I could 

follow up a minute on Mr. Shattuck's question. As I get it, by exempting the Trading With the Enemy Act, we are, in effect, continuing 

the emergency for the sake of that statute.

Is tha t your interpreta tion ?

Mr. Sommerfield. You are continuing an emergency which will 

perm it the continued operation of these controls which are now in 

existence, embargoing Cuba, embargoing North Korea, embargoing 

North Vietnam, freezing many millions of dollars of Chinese and 

Cuban assets and controlling strategic shipments to Eastern Europe. 

The latter one I am sure you could deal with under new legislation

* without difficulty. You do not need an emergency for th at one although 

it is under this authority at present.

Respecting the other regulations, where there exists, in particular, 

the freezing of assets, you have to have, as I see it, a continued emer-

* gcncy in existence legally to justify the action and I, in effect, am saying that I think there is a question—I cannot predict how the courts 

would actually rule but I think there is a question—a risk, and not an 

insignificant one, that if there were no emergency legally in existence 

on the books, you could not in a peacetime activity continue to block 

these assets until you reach some settlement with these countries.

I might add just as a matter of background that the Secretary of 

State announced about 1972, I believe, or 1971, tha t we had reached 

an agreement in principle with the People’s Republic of China, for 

settlement of American claims against China, but tha t has never been 

implemented because of negotiating difficulties. I f you lost this blocking control you are just letting the Chinese take $90 million freely out 

of the United States and hoping you will be able to collect from them, 

which, without collateral, may be difficult.

Mr. Coffey. Aly point would be that under the criterion you set 

down, a legal emergency must be in effect to justify the continued 

validity of the blocking.

I would argue, perhaps, tha t i f we passed this bill tha t there would 

not be a national emergency legally. In effect, we are exempting the 

Trading With the Enemy Act. from the provisions of this legislation 

but we are not continuing the emergencies here. You do not see a 

problem ?

Mr. Arnold. This is a possibility, sir, but actually, the bill does not

* terminate the emergencies despite the language used in one title.

Mr. Coffey. I understand that.

Air. Arnold. It says tha t existing emergencies are not effective with 

rega rd to the various uses; it says they are not effective really with re-

» gard to any uses but it exempts from that provision the statutes tha t

are referred to in the last section, section 602.

In truth , we have no t focused sharply on the point tha t you raised. 

It certainly did not occur to us that there would be any problem in 

that direction. Since the emergency is not technically terminated, it 

seems quite appropria te—it does to me as an individual, at least—tha t 

Congress should decide that by and large the effect of emergencies 

will not continue but that there is good reason in a particu lar field to 

have the effect continue longer to allow Congress and the administration to consider what to do about the matter.

5 2 - 2 1 S— 75- 4
46

So, in short, I do not think we do have a worry along the lines of 

what you have raised.

Mr. Coffey. All right, fine. You see the powers and authorities language as sufficient for your purposes?

Air. Arnold. Yes, sir.

Air. Coffey. One additional question, if I might. Th at has to do with 

title V of the bill.

Title V is concerned with the accountability and repo rting requirements that the executive agencies and the President will have under 

the National Emergencies Act. One of the phrases th at is used here a 

number of times, I guess a couple of times, is “all significant orders,’’ 

and this is a somewhat vague phrase.

I would like to get the reaction of one executive agency tha t will 

have to comply with tha t as to what you feel this really means and 

what would come under it in vour interpretation.

Mr. Arnold. I think, speaking very frankly, you have to consider 

the present draft against the background of some of the earlier proposals, which were considerably more onerous in their reporting requirements. And it seemed to the administration tha t the new dra ft 

was a distinct improvement. Perhaps we have not focused with all 

carefulness on what would be “significant.”

I am inclined to think personally that practically any orde r by the 

President would be significant. lie does not make many orders on a 

given subject and when he does it is generally pretty significant tha t 

he has made an order. So I think really that that would work out pre tty well just in practice. th at one would tend to list all of the orders of the President most 

likely. I do not want to say th at flatly. That is not a clear thing. But 

it would seem to me to tend to go that way in fact. Could I interject one thin g? I meant to mention earlier, it is purely 

a d rafting m atter but it seems to me that the word “such” in the fifth 

line of section 501(a) is surplus, and perhaps the committee or the 

committee’s staff would like to consider this. There is no antecedent 

for the “such” in the sentence, and it looks to me as if it had been 

carried over from some earlier period, perhaps.

At any rate, the committee might like to think about that in its 

dra ftin g work.

Air. Coffey. I have no further questions. Thank you.

Air. Flowers. I will agree with the gentleman about the word 

“such.” The gentleman from California has come in and I will recognize 

him.

Air. Danielson. I will defer my questions for the time being. I was 

unavoidably delayed and I would like to review the w ritten statement.

Air. Flowers. I he last time the gentleman was not here we adopted 

his amendment in absentia.

Air. Danielson. It proves tha t silence is golden.

Air. F lowers. Air. Fish, do you have any further questions or comments, or Air. Alazzoli ?

Air. AIazzoli. Air. Chairman, I have sort of an extraneous comment.

I would like to welcome my good friend, Art Schissel, who has some 

very strong connections to my district city of Louisville, who has 

worked with the Government and has been outstanding. His presence
tod ay is an indication of t ha t and I would like to extend my personal 

welcome to him and wish him lots of good luck.

Mr. F lowers. That is not extraneous.

Mr. Mazzoli. Perh aps extraneous to national emergencies, but certain ly to Louisville it is very important.

Mr. Arnold. Air. Chairm an, may I respond to tha t? We wanted 

Mr. Schissel to sit at the table with us. He modestly said he preferred 

to be in the audience. I am glad you recognized him.

Air. F lowers. He is singled out. Next time we expect him to be sittin g at the table. [The prepared statement of Air. Arnold follows:]

S tatement of Elting Arnold, Senior Counselor to ti ie General Counsel of

th e Department of th e Treasury

Mr. Chairman and Members of th is Subcommittee : It is a plea sure to be with you today to discuss the proposed “National Emergencies Act” (H.R. 3884). As this Committee is aware, thi s legislation is the outcome of two yea rs of study and bearings conducted by the Senate Special Committee on the Termina­ tion of the N ation al Emergency. The Treasury, as well as oth er Executive agen­ cies, has worked with the Special Committee in eva luating existing emergency pow ers and statutes. Among oth er matters, careful attention was given to the que stio n of which sta tutes should be repealed as obsolete, which should be re cas t as permanen t legislation, and which should be retained for use on an emergency 

basis. The amended version of the Senate national emergencies bill, introduced in

the last Congress, which passed the Senate on October 7, 1974, reflected the recom mendations of the Executive agencies. The Directo r of (he Office of Man­ agemen t and Budget wrote to the Chairman of this Committee on December 12, 1974 t hat th e Senate measure, as amended, was acceptable to the A dministration with the exception of one point which has been met in II.R. 3S84. With this change, H.R. 3884 is sub stan tially identical to the Senate-passed bill on which OMB subm itted its report in December. The Tre asury Departm ent considers th at this legislation represen ts a workable approach to the national 

emergencies question. Per hap s it may be helpful to highlight fea tur es of this bill which the Treasury regards a s especially importa nt. First, the bill provides a full year in which the E xecu tive branch and Congress can make the adjustments which may be necessary or desirable in rela tion to the termin atio n of emergency powers provided for in section 301 of the bill. Given the natur e of the legislative process and the number of sta tutes and pro­ gram s th at may require consideration , this appears to be entirely reasonable 

time fo r th e purpose. Second, the Treasury strongly believes th at the exemption of section 5(b ) of the Tra ding with the Enem y Act from the bill’s provisions terminating emergency powers is highly desirable. This exemption is essential to the con­ tinu ed effectiveness of the Fore ign Assets Control Program adm inistered by the Dep artm ent. In addition, we believe that section 5(b) should be reta ined for emergency use to deal with intern ational financial and investm ent problems th at 

may ari se in the fu ture. With respect to the Fore ign Assets Control Program, termin atio n of the emergency basis for use of sectio n 5(b ) would seriously affect the negotiating position of the United Sta tes with regard to controls which regulate tran s­ actions with several foreig n countries and the ir nationals. Among other things, these controls freeze significant amounts of Chinese and Cuban ass ets to be held for an even tual s ettleme nt of t he claims of United States citizens whose property in Communist China and Cuba has been seized without compensation. In this regard, it also appears th at constitutio nal problems might arise with respect to the validity for continued blocking of assets of foreign countries if all national emergencies or author itie s the reu nder were term inated. Finally, the provision of the bill providing for termination of futur e national emergencies by conc urrent resolution is, in our judg ment, pre ferable to the orig­ ina l proposals to terminate emergencies at a date certain. We feel that section
48

202 of the bill provides for ade qua te Congressional control over the period fo r 

which future emergency d eclaration s may remain operative, withou t unnecessary 

inflexibility.

In sum. the Tre asury believes th at H.R. 3884 strikes a reasonable balance 

between the need to resolve questions with re sect to emergency powers and the 

need to preserve flexibility for dealing with crises th at may Occur in the future.

Mr. Flowers. Mr. Fish.

Mr. Fish. I do not have any questions. Mr. Chairman.

Mr. Flowers. Thank you. gentlemen. I do not see any sense in lielaboring it. If we have reached an accommodation, i f we understand 

each other, 1 will declare t ha t this meeting be adjourned and we will 

recess until further call of the Chair, which will probably be next 

Wednesday, gentlemen, and we will hear from Defense.

I would suggest in light of the brevity we find here we might try 

to conclude that aspect. Thank you.

[Whereupon, at 2:10 p.m., the subcommittee adjourned, to reconvene subject to the call of the Chair.]
NATIO NAL EME RGENCIE S ACT

W ED N ESD A Y , M A R CH 19, 19 75

H ouse of Representatives,

Subcom mittee ox Administrative L aw

and Governmental Relations

of the Committee on th e J udiciary,

Washington, D.G.

The subcommittee met. pursuant to notice, at 10:09 a.m.. in room 

2141, Rayburn House Office Building, Hon. Walter Flowers [chairman of the subcommittee] presiding.

Prese nt: Representatives Flowers. Danielson. Jordan, Mazzoli, Pat ­

tison. and Moorhead. Also present: William P. Shattuck, counsel; and Alan F. Coffey. Jr., 

associate counsel.

Mr. F lowers. Gentlemen, if we could, we will get started and see if 

we cannot conclude at an early hour. We have three Democratic members here, but we are short on Republican members, even when they arc 

all here, so we will go forward. We want to continue our hearings on H.R. 3SS4. providing for termination of national emergencies and providing a procedure for futu re 

national emergencies. We are delighted to have testimony this morning 

from both the Department of Defense and the General Services 

Administration.

The first witness we have today will be from Defense, and we will 

ask him to come forward, Mr. Leonard Xiederlelmer, who is the Deputy General Counsel of the Department of Defense, and sir, if you 

have someone with you. the captain I just met or others, please intr oduce them and we will proceed. After Defense, we will have testimony for GSA, and I will intr oduce them later.

TESTIMONY OF LEONARD NIED ERLEHNER, DEPUTY GENERAL

COUNSEL, DEPARTMENT OF DEFENSE, ACCOMPANIED BY CAPT.

CHARLES WILLIAMS, U.S. NAVY AND WALTER F ENERTY. OFFICE

OF THE JUDGE ADVOCATE GENERAL OF T HE AIR FORCE

Mr. Niederlf.iiner. Mi*. Chairman, I have with me this morning 

Capt. Charles Williams of the Navy, who is quite familiar with the 

intricacies of military personnel law. Some of the items which we are 

interested in relate particularly to the Navy personnel structure. And 

this is his general field of interest within the Office of the Secretary of 

Defense. And to my left is Mr. Walter Fenertv of the Office of the 

Judge Adovacate General of the Air Force, who has a longtime famili- 

(49 )
50

aritv with the detailed background study of the emergency legislation 

upon which the pending bill is based.

T am very pleased to have the opportunity to offer comments of the 

Department of Defense on H.R. 3884, a bill to terminate certain authorities with respect to National Emergencies still in effect, and to 

provide for orderly implementation and termination of future national emergencies.

The Department of Defense favors the goal of H.R. 3884 to terminate obsolete or unnecessary authorities based upon states of emergencies. However, a relatively small number of the authorities currently 

dependent upon a state of emergency affect contracting procedures, 

personnel entitlements, and organizational structure of the Depart- •

ment of Defense: and it is believed that the Congress will want to 

enact permanent legislation to treat with these various subiect matters.

Legislative proposals have been made to the Congress dealing with 

most of these items and it is hoped that they will receive attention in 

the near future. However, we recommend that they be exempted from 

the broad sweep of the pending bill until such time as the Congress has 

an o pportunity to consider whether, and in what form, these auth orities should be enacted into permanent law.

World and national conditions have changed since President Tru ­

man officially proclaimed the state of national emergency in 1950 incident to the commencement of hostilities in Korea. Many authorities 

which were used then for the first time were regarded as extraordinary.

Since then, experience has demonstrated a need for these authorities 

in the regular conduct of day-to-day operations of the Department of 

Defense. The desirability of terminating existing states of emergency 

is recognized and no objection to their termination is entertained by 

the Department of Defense.

However, there are certain continuing needs which are accommodated by the existing national emergency proclaimed bv President 

Trum an in 1950 but which are not specifically provided for in ILR.

3884. The bill should provide an exception for each of the items I 

shall now refer to until such time as the Congress is able to consider 

permanent legislation to meet the particular need.

CONTRACTING AUTHORITY

(&) Since 1941, there has been available to the Department of *

Defense authority to deal with unusual contract circumstances. Termination of the national emergency would terminate such authority 

of the Department of Defense (and certain other agencies) under 

Public Law 85-804, codified at 50 U.S.C. 1431-1435, which is the *

current form of the 1941 statute.

This statute provides authority to correct mistakes in contracts, to 

formalize informal commitments, to indemnify contractors against 

losses or claims resulting from unusually hazardous risks to which 

they might be exposed during the performance of a contract and for 

which insurance, even if available, would be prohibitively expensive, 

and to grant other extraordinary contractual relief.

The Commission on .Government Procurement, established by 

Public Law 91-129. recommended to the Congress in 1972 tha t the 

authorizations of Public Law 85-804 be made available generally
51

lat he r than being dependent upon the existence of a state of war or 

national emergency. . . . . .

(5) The procurement process within the armed services is utilized 

to accomplish certain ma jor social and economic policies by the placement of contracts in labor surplus areas and in disaster areas, by letting contracts to favor small business, and to achieve a balance of payments favorable to the United States. These collateral policies are 

achieved throu gh tlie emergency exception to the requirement for formal advertisement under the Armed Forces Procurement Act (10 

U.S .C. 2304(a) (1)). The use of this emergency exception is limited by the Armed Serv-

• ices Procurement Regulations, codified at 32 CF R 3-201), to the achievement of the enumerated policies. In the light of the importance attached to these social and economic purposes, Congress should have 

the opportunity to consider the establishment of appropriate contract -

• ing procedures on a permanent basis.

PERSONNEL ADMINISTRATION

A number of personnel procedures which have become basic to the 

current military structure are based upon a state o f emergency. Major 

legislative proposals which place many of these personnel procedures on a permanent basis have been proposed but have not been enacted.

They have been considered, however. The latest and most comprehensive of these proposals, the Defense Officer Personnel Management Act, was introduced in Jan uary 1974, but was not acted upon. H ear­ ings were held. It will be resubmitted to the New Congress in 1975 and, i f passed by the Congress, will cure most of the problems I shall 

now mention. These problems can be classified under two categories— those tha t deal with Defense organization and those that deal with 

personnel entitlements. Under the heading of Defense Organization, the first item is retention of the emergency authority of 10 U.S.C. 3444 and 8444 which are 

required for the following purposes:

(a) To provide the auth ority to make temporary appointments of officers in the Chaplain, Judge Advocate, and Medical fields, who. because of constructive service credit in th eir specialties, are considered for permanent promotion earlier than line officer counterparts, and 

« whose separation for failure of promotion might become mandatory

under conditions inconsistent with the needs of the service. (5) To provide the authority of the President as Commander in Chief to grant temporary appointments to exceptional officers of the 

„ Army or Air Force. An example is the promotion of the Air Force

astronauts.

(c) To provide the auth ority to appoint alien doctors as officers in 

the Army and Air Force to meet critical shortages of military medical 

personnel.

(2) Over a period of years, the personnel structure of the naval 

service has developed around several emergency authorities which 

now form the basis of officer management. These authorities inclu de: (a) Section 5231(c) of title 10, United States Code, which suspends 

existing limitations on the number of admirals and vice admirals in
52

the Navy. If tliis auth ority is not continued, the Navy will lose approximately one-half of its three-and four-star admirals.

(b) Section 5232(b) of title 10, United States Code, suspends existing limitations on lieutenant generals of the Marine Corps. If this 

authority is not continued, the Marine Corps will lose live of the 

currently authorized seven lieutenant generals.

(c) Section 5711(b) of title 10, United States Code, authorizes the 

suspension of the statutory limit of 5 percent for early promotion selections specified in section 5707(c). This is the so-called selection below 

the zone.

(d) Section 5781(b) of title 10, United States Code, is needed to

suspend tiine-in-grade requirements for promotion to all Navy and •

Marine Corps grades except lieutenant and lieutenant commander.

This statute is also the authority for suspension of the mandatory 

promotion selection rate provisions for certain staff corps officers to 

grades below rear admiral. *

(e) Section 5787, of title 10, United States Code, provides for temporary promotions in the Navy. Failure to retain this authority would 

require approximately 650 limited duty officers in the grade of lieutenant commander to revert to the grade of lieutenant. Discontinuance 

of this authority would also require Senate confirmation of all regular 

promotions to lieutenant (jun ior grade).

I would like to add a thought to the prepared statement at this 

particu lar point, Mr. Chairman. The five preceding items I have mentioned are peculiar to the Navy and Marine Corps. While the Navy is 

relying upon a limited number of emergency authorities for certain 

portions of the current officer management program, the authority for 

i he Army and the A ir Force in these areas is not based upon the existence of an emergency. This type of difference between the laws relating 

to the military departments is addressed by the Department of Defense 

in its proposals to the Congress for comprehensive legislation relating 

to the officers personnel management.

Pending the enactment of such legislation, the repeal of the emergency authority would create an unfortunate disparity in the management of officers personnel within the Department of Defense.

PE RSO N NE L E N T IT L E M E N T S

(1) There are currently 913 members of the Armed Forces who are «

listed as missing in action in Southeast Asia. Only the emergency 

auth ority of sections 3313, 6386(c), and 8313 of title 10, United States

Code, authorizes the suspension of m andatory separation and retirements which would otherwise be applicable to allow some of these «

members to remain in the Armed Forces until they return or are accounted for. Whether or not their situation is viewed as w arranting 

continuation of a national emergency, it would be inequitable to force 

the ir separation or retirement while they are in a missing status.

(2) Termination of the 1950 national emergency would also terminate entitlement to disability retirement or separation benefits under 

sections 1201 and 1203. o f title 10, United States Code, for members 

with less than 8 years of service whose disability of 30 percent or more, 

although incurred in line of duty while on active duty, was not the 

proximate result of the performance of the active duty. Loss of this
53

eligibility—which would affect only jun ior officers and enlisted men— 

is particularly untimely when the Armed Forces are endeavoring to 

meet their manpower needs through voluntary means.

The Department recommends the deletion from the bill of subsection 602(a) (2). which refers to “Section 673 of title 10. I nited States 

Code”; this statute provides authority to order to active duty members of the Ready Reserve “In time of national emergency declared 

bv the President after Jan uary 1. 1953.” This statu te would not be 

affected by termination of the existing national emergency.

In view of the need for continuation of the authorities I have referred to. the Department of Defense recommends that any legislation 

terminating emergency powers except the cited statutes from its effect 

until such time as the Congress has the opportunity to consider the 

necessity for permanent legislation.

Finally, there is one procedural requirement of Il.R. 3884 which 

does not appear to us to be realistic. I refer to the provision in subsection 501(c) which requires a report to Congress on total expenditures within 30 days aft er the end of each qu arte r during a national 

emergency period.

The 30-day reporting requirement does not provide sufficient time 

to collect the required data for transmittal to Congress. Ninety days, 

we believe, would be more appropriate to accomplish the task properly.

This concludes, Mr. Chairman, the prepared statement. My colleagues and I will attem pt to answer any questions which you may 

have.

Mr. Flowers. Thank you, sir. T do not know whether to sav that 

I am glad to see th at there is some controversy, which gives us a little 

bit more to talk about, or I am disturbed that this has not been 

brought to either the Senate committee or to us before this time. 1 

was not aware that there were, as you say, these important emergency 

powers that were not already in this legislation.

Extending the exemptions to perhaps the extent DOD is asking 

and if other agencies have some similar problems with the legislation. 

1 fear th at what we are going to end up with is a piece of legislative 

work here that really does not terminate anything. It does not really 

do anything but give us a cosmetic solution to what some of us have 

thought was a correction of the record that was called for.

Xow. basically, what you are talking about here is what, two different areas, one the contracting authority and the other is really personnel administration, an d is that about it ?

Mi-. Xiederleiiner. Tha t is correct. Yes. sir.

Mr. Flowers. In two different areas. Well, under the contracting 

authority, the first matter th at you are talking about here, the legislation that we would be terminating has been on the books since 1941, 

is tha t right ?

Mr. Xiederleiiner. Some of it goes very, very far back. yes. sir.

Mr. Flowers. Was this brought to the attention of the special 

Senate subcommittee? Are you aware of that when they reported the 

bill in the last Congress?

Mr. Xiederleiiner. Yes. Mr. Chairman. Let me give you just a brief 

background statement.

Fo r the House Committee, we filed a report on December 24. 1974. 

after clearance with the Office of Management and Budget, and we
54

are in th e process of presen tin g an ad dit ion al repo rt on the pen din g 

bill, wh ich is ide ntical to the prev iou s one, S. 3957 of the 93d Congress. 

My p ers onal fam ili arity w ith t hi s p roblem da tes f rom A ug us t of 1974.

Now, th e entire dec ontrol process has been g oin g on, I su ppose, since 

about 1948. Th ere were two dec ontrol acts, whi ch were ma naged by 

Se na tor Wiley in 1948 and 1949, and these res ult ed in the removal 

fro m the books of a gre at nu mber of emergency an d wartim e 

authorities.

The cu rren t stu dy un de r Senate Resolutio n No. 9 was ap pa rently 

in iti at ed in Ja nu ar y of 1973. Now, the p roblem which we e nco untered 

was th is : the work of the Special Sub com mittee was a stu dy and it 

was no t un til sometime in 1974, I th in k Au gu st 22, 1974, th at any 

form of a bill was introd uced.

We were no t requ ested to com men t upo n it and th ere were no 

hearings held in the Sen ate.

We prep ared a repo rt imme dia tel y upo n the intro du ction of the 

bill an d as I say, the re was no t time to pre sen t it to the Sen ate. We 

did pro vid e it to the House Ju dic ia ry Com mittee un de r date of December 24, 1974. At the tim e of the int rodu cti on , there was an ou tstan di ng letter to the Senate com mittee, whi ch was tiled by the A ir 

Force , whi ch was in the na tu re of a stu dy sho wing the item s which 

were affected by the bill, and the item s whi ch were con sidered to be 

of im porta nce to the Dep artm en t of Defense at th at pa rtic ul ar time.

Th e outlin e, which was provide d to the committee, covered pr etty 

close to 400 item s and of those we ind ica ted an interest in ap pr ox ima tel y 00 items. The A ir Force at th at tim e ha d the res ponsibility 

fo r the bill, bu t the y were not in a position to act as refere e for the 

othe r two Serv ices, and they br ou gh t it to the attention of the Office 

of the Se cretary of Defense.

At th at po int , we ha d pre vio usly redu ced the 400 to 00, and in 

Au gu st an d September, we red uce d the 00 down to 10. which are t he 

10 which presently are covered in my sta tem ent and in t he lette r pr eviously filed with the com mittee. An d we are pr et ty well convinced 

th at t liis is a fa irly basic m inimu m as fa r as item s whi ch are of g reat 

concern to us.

Mr. F lowers. Well, I c ertainly can not qu arrel wi th th e un de rly ing 

the sis on pag e 4. as you ta lk about the procurem ent process, fo r instan ce, utilized to accomplish ce rta in major social and economic po licies such as the placem ent of co ntracts in lab or surplus are as, and in 

disaste r areas, by letti ng co ntracts to favo r sma ll business and to 

achieve a ba lance of paym ents fav orab le to the U nited State s. I do not 

qu arre l wi th th at , if t hat is wha t the emergency power gives you the 

op po rtun ity to do.

W ha t is difficult to und ersta nd is why th at has not been d ea lt wi th in 

basic leg islation, I guess th ro ug h the Armed Services Comm ittee or 

who eve r would be involve d there . And T would fe ar th at if w e do no t 

have some so rt of push in some way. th at we are go ing to con tinue to 

need th e e mergency legis lation ra th er th an to de al wi th thi s on its own 

me rits .

An d w hat w ould you s ay to th at , sir ?

Air. Ntederlehxer. 'Well, th e repo rt which was made by th e Commis sion on Government Proc urem en t was tiled in 1972. Now. no thing 

I thi nk w ould be done with respec t to this pa rtic ul ar item u nles s some
55

rea ction is received fro m the new Office of Fe de ra l Proc urem ent I olicy, which is now headed by Mr. A\ it t in th e Kxecu tive Office of th e 

Pr esiden t.

Th e re po rt in 1972 wa s made to th e C ongress, b ut no rec ommenda tion 

lias as vet come fro m th e new Commission. And I wou ld an tic ipate 

th at th ey will be addressin g th emselv es to th at recom me ndation as well 

as to the oth er recom mendations of that Co mm ission stud y.

Air. F lowers. Well, I won der, rea lly , if th e pressu re is take n off, 

wh ich is ap pa rently presented by th e prospect of th is leg islati on, 

wh eth er we will have an y early act ion on it. And in the field of per ­

son nel ad minist ratio n, ge neral ly the same com ments I th in k on my 

p art wou ld apply . I do no t find fa ult wi th wha t you say here, excep t 

th at it is th e kin d o f th in g th at oug ht to be d ealt wi th on it s own merits 

in su bstan tiv e legislation, t hat i t o ug ht not be un de r the guise o f em ergen cy powers, I think, th at resid e in th e ex ecutive branch.

Aiid I wou ld ju st ad dress the same que stio n, sho uld th is exe mp tion 

be extend ed to includ e th e things you have a sked fo r here, wha t pr os ­

pec ts wou ld we have t h at th at wou ld ge t any early attention on a per ­

man en t ba sis, th at th at wo uld allow fo r a del etion from th e emergency 

powers a t a later da te ?

Air. N ieder lehner. AAr ell, as f ar as th e executive b ranc h is con cern ed, 

Air. Ch air ma n, we have p rop ose d solutions to these vario us problems, 

an d pa rtic ul ar ly in the area of m ili ta ry person nel manag ement . I he 

subje ct m atter is extre me ly com plic ated and the House committee last 

ye ar on the 1974 sub mis sion commenced h earin gs on the comprehensive 

Defen se Officer Perso nnel Alanagement Ac t, bu t decided th at it was 

a little bit too comp licate d to complete the ac tion .

And u nf ortuna tely, as sometimes happens, the y passed se vera l fr ac ­

tio ns of the s tatute as individu al e nac tment s, and t his is so mew hat the 

pro blem th at yo u have. Iro nica lly , ma ny o f the pro blems we are de alin g with are eit he r so com plex as to tak e a gr ea t am ount of tim e to 

de al w ith or som ewhat mi nim al and no t d eserv ing of u rg en t a tte ntion.

I w ould sav some of th e pa y items w ould be in th is catego ry.

I wou ld say v ery briefly th at we w ould hope to ge t att en tio n by the 

Ar med Services Comm itte es to all of these item s which we have mentioned. The procurem ent items, I think, wou ld probably come to 

th e Gover nment O pe ratio ns Committee t hr ou gh th e Fe de ral Pr oc ur ement Commission, but as fa r as o ur p ersonn el items are concerned, we 

ce rta inly would hop e th at attention will be giv en t o them. »

Xow, I do n ot wa nt to im ply any cr iticis m of the com mittees because, 

as I say. th e item s a re qu ite com plex a nd difficult to deal with .

Air. F lowers. We ll, I would agree with th at , bu t I think th at we 

ha ve a role and a res po ns ibility in these days to tr y to unc omplicat e 

governm ent and tr y to uncom plicat e the United States Code and ou r 

sta tutes . A nd ho pefully , we can wo rk i n t hat d irection.

I am go ing to call tim e on myself a nd recognize the gent lem an f rom 

Ca lif or nia, the disti ng uish ed rank in g minor ity member for wh ate ver 

he might hav e to addres s to you, s ir.

Air. AIooriiead. T ha nk you.

I am very much inter ested in your comments on the Ready Reserve 

an d the recommenda tion th at it be deleted fro m the lis t of exe mpted 

sta tutes. I know fro m ta lk in g to most peo ple in the Reserves, one of 

th e big com pla ints ha s been th at the Reserv es were no t called du ring
56

the Vietnam war. They felt th at they hail a function and tha t function 

was not used. If we followed your recommendations here, and took 

away the power to call up the Ready Reserve, would th at not further 

cutback on their efficiency, and their drive to be ready and effective ?

Air. Xiederlehxer. Xo sir. The point is that tha t section remains 

on the books. It could have been used during the Vietnamese war by 

the declaration of an emergency. It can be used in any future situation 

by the declaration of an emergency. There is no existing emergency in 

effect which would permit the use of that particu lar section, because 

it provides in its own context tha t it is only available upon the declaration of a new emergency afte r 1953, so that that auth ority is available 

to us and will remain available.

Air. AI Ol >R1IEAD. AI ight there not be times when the Ready Reserve 

should be called up or would be necessary perhaps for foreign policy 

reasons, even though we technically are not in a state of a national 

emergency or at war?

Air. Xiederlehxer. Well. I am not sure I understand your question, 

but let me try this. In order to effectuate that statute with the authority to call up to a million Reserves, there must be a new declaration of emergency by the President, and the President has not seen fit 

to do that, or did not in the Vietnamese war.

There was a good deal of discussion of this at the time, and I think 

tha t Secretary AlcXamara said that he felt that the Reserves must be 

kept in reserve, and they relied upon the Regular forces and upon the 

Selective Service. And I know th at there is a great deal of attention 

given to the fact that the Reserves were not utilized.

Air. AIoorhead. In your discussion of this Defense Officer Personnel 

Management Act, you indicated that legislation is very important to 

you and would solve an awful lot of your emergency related personnel 

administration problems.

Can you tell me specifically which areas tha t legislation would 

a fleet.

Air. Xiederlehxer. Xow, Air. Congressman, I would like to defer 

to my expert. Captain Williams.

Captain Williams. Air. Congressman, if I could refer to Air. Xiederlehner’s statement commencing on page 5. I might be able to indicate 

those problems that he had reference to that we feel will be cured or 

substantially alleviated by the enactment of our proposed legislation 

of a moiv comprehensive nature.

Start ing initially with sections 3444 and 8444. which pertain to the 

Army and the Air Force, the problem presented here is one of a technical nature that forces out certain categories of officers who have failed 

in selection for promotion before they are eligible for retirement. The 

Defense Officer Personnel Management Act. which would standardize 

these kinds of provisions for all of the military departm ents, would 

preclude this kind of thing from happening and we feel th at it will be 

a cure for this particular problem. The continuation of the emergency 

autho rities would be a tempo rary expedient until the Defense Officer 

Personnel Alanagement Act can be considered and acted on by the 

Congress.

Air. Moorhead. You would have a serious problem, then, if II.R. 

3884 would pass prior to the time.
Captain Williams. Well, the numbers of persons involved are not 

large. Congressman. 1 think about 38 otticers in the Army ami some 20 

officers in the Air Force would be affected. The Defense Officer Personnel Management Act does not specifi­ cally address the exceptional promotional auth ority which is being used by the Air Force to promote astronauts. Perhaps some other cure 

for that could be sought. The Defense Officer Personnel Management Act does address the appointment authority of officers and standardizes that for all services. On the next page of the statement, there are two sections tha t deal with admirals in the Navy and generals in the Marine Corps. The cur­ rent emergency au thority permits the Secretaries of those two services to nominate officers of four-star and three-star grade, if I could use tha t terminology, in excess of what file ]>ermanent law limitations are. Of course. these nominations are to positions of great importance and responsibility, which is a term used in the law itself. 1 hey are ap­ proved by the President and confirmed by the Senate, so it is not a carte blanche authority that the services have in this area. There are restraints, and each position is carefully considered. However, the permanent law is much more restrictive in the case of the Navy and the Marine Corps in this particular area than is the permanent law of the Army and the A ir Force. I cannot speak for the complete justi­ fication of all of the three- and four-star admirals and generals in the Marine Corps and Navy, but I can say that the withdrawal of this emergency authority would have tremendous repercussions as far as the organizational makeup of those two services is concerned, and would require the elimination of about half or more of our most senior 

milita ry leaders.

Mr. Moorhead. One th ing that greatly concerned me in your s tate ­

ment was that unless some exemption was put into the statute, you might very well have to discharge the people who are missing in action. 

Is that correct ?

Captain Williams. Yes, sir. That is further on in the statement. 

The Defense Officer Personnel Management Act did not anticipate that kind of a situation, so there is not a specific statute proposed in the legislation to correct that. However, there is a provision that we think could be used to protect these individuals that would defer involuntary separation or retirement until a medical determination 

had been made as to their status.

Mr. Moorhead. So you can live without those emergency powers?

('aptain Williams. Not until we would have the Defense Officer 

Personnel Management Act enacted.

Mr. Flowers. Would the gentleman yield?

Mr. Moorhead. Yes.

Mr. F lowers. I was curious in reading that part of the statement too. Captain, and the obvious question to me is how did we get by this similar situation after World War II? We made do somehow or another because there were an enormous number of missing personnel then that were not determined to be either killed in action or whatever. 

Wha t did we do then ?

Captain Williams. Mr. Chairman, there have been many changes 

in the law over the years. To just after World War II we had the largest revision to the officer personnel laws that we have ever had
58

in 1947, which took into account these factors. There were transition 

provisions and terminable provisions put into the Officer Personnel 

Act of 1947 tha t would have covered those people.

Mr. F lowers. Thank you.

Mr. Mooriiead. W hat would you think, or what would the D epartment of Defense think if we would put a limitation on these exemptions for 1 or 2 years’ time?

Captain Williams. Coidd I defer to Mr. Niederlehner ?

Mr. Niederleiinek. Mr. Congressman, the more time that we are 

permitted, of course, the bette r it is from our point of view because 

of the greater likelihood of having the permanent legislation enacted. 

But, I would like to point out that , if you placed a lim itation, let us 

say, of 2 years for the existence of certain authority during which 

time it was expected tha t the Department of Defense would accomplish certain goals and ends, we would consider tha t to be quite reasonable and quite fair, because then we could of our own initiative 

accomplish those goals and those ends. But what we are dealing with 

here is the deferral of the removal of certain authorities until Congress takes a look to determine whether we should have permanent 

auth ority to substitute for the emergency authority. So we are really 

in a situation where whatever you do in this bill is settin g a time limit 

with respect to the action of the Congress. And T am saying, whether 

or not the Congress determines that we should be given any of those 

authorities in a permanent form, we certainly think tha t it should 

have an opportunity to look at them and to consider the consequences. 

I think this is particularly true where there are disparities between 

the treatment of officer personnel, for example, in the Navy as compared to the Army and the A ir Force.

To answer your question very briefly, we would hope to get permanent authority in each of those areas, that is. have it either enacted or denied within a relatively short period of time. But it is not 

a matter that is within our control. That is the reason that we have 

asked for a general exception. On the other hand, if Congress provides an exception in the bill itself, pending furthe r action by the 

Congress, it is a matter which is uniquely within its own ken, so 

that these exemptions can be removed at any time and certainly would 

be removed in the event of a permanent enactment in one of these 

fields or in the event th at some decision is made not to enact permanent legislation dealing with the situation.

Mr. Moorhead. It would certainly make it easier for everyone concerned if there was permanent legislation and you did not have to 

depend upon emergency statutes, even though they have been utilized 

for many years.

Mr. Niederlehner. Yes, sir, it would.

Mr. Moorhead. Thank you very much. And we appreciate your 

coming here this morning and helping us.

Mr. Niederlehner. Thank you, sir.

Mr. F lowers. The Chair recognizes the gentleman from California, 

Nfr. Danielson.

Mr. Danielson. Thank you, Mr. Chairman.

Mr. Niederlehner, I note from your statement on page 2 that the 

contract auth ority to which you refe r has been in effect since 1941,
59

which as I recall it, was about the time tha t we were g ettin g deeply 

involved in W orld War II. But anyway, it is 34 years ago.

As to personnel administration commentary on page 4, you state 

here a number of personnel procedures which have become basic to 

the current military structure are based upon the state of emergency. 

Now, this gives me some concern because I do not think that we are 

performing our duty where we permit or encourage basic changes in 

our Government organization to be based upon emergency legislation. When did this personnel emergency legislation become enacted, 

when was it enacted?

Captain Williams. If I could respond to that?

Air. Danielson. Surely, Captain.

Captain Williams. There are, of course, a number of statutes codified in title 10.

Mr. Danielson. Right.

Captain Williams. Which have grown up over the years, so to pin 

down at any point in time-----

Mr. Danielson. Let me tak e this seriatim now. You talk about a 

state of emergency, and now the first one you deal with on page 5 in 

para graph A, subnumber 1, you talk about 10 U.S.C. 3444 and 8444. 

When wrere they enacted?

Captain Williams. Well, as I recall those two sections stem from 

the Officer Personnel Act of 1947.

Mr. Danielson. Counsel has just shown me a citation out of the 

United States Code. It is August 7. 1947. OK.

Now, let us move to the next one. The next, one you cite is on page 

6 in paragraph 2, subsection a, 10 U.S.C. 5231(c). You are refe rring 

to admirals and vice admirals. When was that enacted ?

Captain Williams. I believe t ha t also stems from the Officer Pe rsonnel Act of 1947.

Mr. D anielson. 1947. Well now, is th at an emergency act too ?

Captain W illiams. Well, within the text of th at particular section, 

there is an enabling clause th at would exclude certain provisions of it 

during an emergency or a war.

Mr. Danielson. Oh, so the basic law here in title 10 included a 

provision which perpetuated the auth ority previously granted under 

emergency legislation ?

Captain Williams. I cannot speak for whether it was ever previouslv granted or not.

Mr. Niederlehner, I note from your statement on page 2 tha t the

Captain Williams. And subsection c I believe.

Mr. Danielson. Subsection c, “Except in time of war or in actual 

emergency.” So. therefore, the exception hinges upon there being a time 

of war or a national emergency in effect ?

Captain Williams. Yes, sir.

Mr. Danielson. All right, tha t is the 1947 act. But what is the 

emergency then t ha t trigg ers this exception ? Is it the World W ar II 

emergency of 1941 ?

Captain Williams. No, sir. The Korean emergency of 1950 in this 

case.

Mr. Danielson. So this hinges on the 1950 Korean emergency ?

Captain Williams. Yes, sir.
60

M r. Danielson. OK . So th at has been in effect for 25 y ear s. Is t ha t 

likewise the controlling statutor y au thor ity fo r subsection b on page 

5. the tia np or ary appoint me nts to exceptional officers? It is ne ar the 

bottom of pag e 5 of Mr. Xi ed erieh ne r's sta tem ent, five lines fro m the 

bo tto m o f th e page.

Cap tain Williams. Th at stem s fro m the Officer Pe rso nnel Ac t of 

1947 also.

Mr. Danie lson. W hich in tu rn pro vid ed th at the exc eption is tr ig ­

gered by th e Ko rea n emergency de cla ratio n of 1950 the n ?

( 'apt ai n W illia ms. 1 believe so.

Mr. Danie lson. A promotion fo r Air Force astro nauts . We did not 

have any as tron au ts in 1950 as I re call.

Cap tain W illiam s. Th at is the c urrent uti liz ati on of th at pa rtic ul ar 

provision.

Mr. Danie lson. All rig ht. T he as tro na uts came into be ing in ap pr ox ­

imately 1959 or 1960. tlu* first three were selec ted for trai nin g I believe.

Cap ta in W illiams. I believe there are ap prox im ately seven that 

wou ld be covered by the sta tute r ight now.

Mr. Danie lson. Seven, and of course we h ave ha d a nu mb er add ed 

since th at tim e. L mean the origi nal astro na uts have been rep lac ed by a 

new genera tion.

Ca ptain W illiams. Yes. sir.

Mr. Danie lson. All rig ht now, th en prov idi ng fo r the au th or ity to 

appo int alie n doctors in su bp ar ag ra ph c, is th at also based upon the 

act of 1947, trigg er ed by the Korean em erge ncy of 1950?

Ca ptain Williams. Yes, sir. Tho se appoint me nts will be made un de r 

th is same ge neral provisio n of the law.

Mr. Danie lson. I am just tryin g to date these things because our 

concern here is th at we have been allow ing emergencies to con tinue 

too long , an d I am just tryi ng to find ou t wh at is the vinta ge ye ar of 

some of these.

Now, on page 6 you men tion th at ove r a period of yea rs, and thi s 

is Mr. Xi ederi ehner's statem ent , th e pers onnel stru ctur e of the naval 

services has dev eloped aro und sev era l emergency au thor ities which 

now form the basis of officer ma nageme nt. Now the n, you have got 

tit le 10, subsection 5231(c) on the numb er of ad mira ls and vice ad ­

mirals. Is th at ag ain the 1947 act plus the 1950 Ko rean emergency ?

Ca pt ain W illiams. Yes, sir.

Mr. Danie lson. W ould th at be ge ne rally the pa tter n on these subsection s? I do not mind going th ro ug h them. We ll, let’s go thro ug h 

them. Sec tion 52 32 (b), the next su bp arag raph , lie ute nant general s in 

the Ma rine Corps . Is that again 1947 a nd 1950?

Ca ptain W illiam s. Yes, sir , th at same situation.

Mr. Danie lson. T he next one. 57 11 (b), the suspension of the stat uto ry lim it of 5 percen t fo r earl y prom otion, is that ag ain 1947 plu s the 

1950 emerg enc y?

Ca ptain Will iam s. I f I might hav e a mom ent to confirm this. Yes, 

sir.

Mr. Danie lson. Th en 5785(b) to sus pen d tim e-i n-grade requ ire ­

ments fo r prom otion to all Xavv an d Ma rine Corps grades exce pt 

lie uten an t and lie ute nant c omm ander. Wou ld th at likew ise be t he 1947 

act plus the 1950 em ergency ?

Cap tain "Will iam s. Yes, sir.
61

Mr. Danielson. We are almost done with them here. On page 7, title 

10, section 5787, temporary promotions in the Navy, and you say failure to retain this authority would require approximately 650 limited 

duty officers in the grade of lieutenant commander to revert to the 

grade of lieutenant. Would tha t be the 1947 act plus the 1950 emergency ?

Captain Williams. No, sir. In this case there is a prior law th at was 

recodified and picked up with the Officer Personnel Act of 1947.

Mr. Danielson. In other words, it is in the 1947 act, but it has its 

roots in earlier legislation?

Captain Williams. Yes, sir.

Air. Danielson. But there is also a trigg erin g by an emergency or 

a state of war?

Captain Williams. Yes. sir, and the Korean emergency would be 

the current triggerin g device.

Mr. Danielson. All right, sir. Now you mentioned limited duty officers. I was in the Navy but there were no limits to our duty at tha t 

particular time. W hat is a limited duty officer ?

Captain Williams. I can best describe a limited duty officer by describing him as a specialist in a particular career field.

Mr. Danielson. I see.

Captain Williams. In a partic ular special career field.

Mr. Danielson. Dike the judge advocate or the Supply Corps ?

Captain Williams. Supply Corps would be a good example.

Mr. Danielson. I understand. Thank you.

Now, here is my concern. We have contract authority since 1941 

based on emergency, and I fully respect the fact tha t it is easier to 

operate under tha t emergency provision than under the basic law. 

because it gives you greater flexibility. But my concern, ami I think 

tha t of many of my constituents, is th at the emergency has gone too 

long, 34 years. There are people who are grandparents, who were not 

yet born at that time, and I feel that our duty here is to go ahead 

with the type of legislation we have. I do not wish to participate in 

bringing any unnecessary, undue burdens on the people in your Department who have this responsibility. But, is there any good reason 

why, if the emergency is brought to a close, the appropriate committee 

of the Congress under your instigation could not pass permanent 

legislation meeting the needs of today ? Why do we kid ourselves by 

acting on a World W ar II emergency that no longer exists when we 

could pass substantive legislation to meet our current needs?

Mr. Ntederleiiner. Well, Mr. Congressman. I would say tha t we 

certainly would hope tha t at our instigation, as you say. we can get 

the Congress to pass permanent legislation in all of these fields. I quite 

agree that we are dangling on a shoestring relying upon emergency 

authorities.

Mr. Danielson. Well, I think tha t it is bette r to stand on a firm 

foundation than to dangle by a shoestring, and you know, the Constitution as I read it says that the Congress shall have the power to 

raise armies and navies, no one else. I f with your instigation the appropriate committees would pass the kind of legislation you need to 

work under today, and I am sure tha t Congress would, then you can 

get rid of these mythical emergencies that do not exist. I think it is 

probably time for Congressional review. I cannot quite subscribe to

52 -2 18 — 75-------5
62

the statement which was voiced by one of you gentlemen that the subject matter is too complex. I just cannot quite believe that you people 

in your law offices can handle it but th at we cannot in ours. I just cannot quite believe that.

I practiced law for a number of years. I find that I got mv law 

out of the same books that you do. With people of good will, and diligence. energy, T am sure we can handle that. I feel tha t there is no need 

for concern that the Congress is not up to handling this problem.

The personnel matters show the trap we fall into. I t illustrates how 

a groove can become a rut. A number of personnel procedures which 

have now become basic to current military structure are based upon 

emergencies. Pe rhaps it is time that the Congress reviewed this structure. Perhaps it is time that we passed substantive legislation which 

says that World War 11 is over. Korea is over, and 1 guess Southeast 

Asia is over. I f not. it is certainly dwindling. Let us get back to or go 

forward to, a basic structure.

Now. I do not want to create any insurmountable problems. This bill 

as now drafted calls for an effective date being 1 year a fter the date of 

enactment. Tha t is a full year. If in a few cases, Mr. Chairman, something might be critical here, difficult or complex, if we were maybe to 

say the provisions contained in sections a, b, c and so enumerated—the 

sticky ones you could say the termination would be effective at the 

close of the fiscal year 1977. June 30. 1977. and that is only 2 years off. 

Do you think you people could instigate the appropriate committees 

to hear your pleas for substantive legislation if we were to pass a bill 

of tha t nature ?

Mr. Niederlettner. Well, Mr. Congressman, as I say, we would 

hope we would be able to get permanent legislation in all of these 

areas. But I think we are most hesitant to suggest tha t we are able 

to see to it tha t the Congress pays attention to these matters within 2 

years.

Mr. Danielson. Well, in that event, you see, it is not vour fault. 

You have passed the buck successfully to the body th at the Congress 

charges with tha t responsibility. It is up to the Congress, it is not up 

to you. You are administrative officers to carry out the policies set by 

the Congress, and if the Congress fails, then we fall flat on our face, 

and you have nothing to do except say, “See, I told you.”

I am going to pursue in this legislation, as we mark it up, pretty 

much the pattern that I have voiced. I understand your problems, believe me. I am sympathetic to them. I think you are probably just 

a little bit afra id to bite the bullet, and I think it would be exhiliarating for von to get out from behind those musty-old account^ aud try to 

get some substantive legislation through. You might have a real th rill 

here, ami I encourage people living dangerously.

Thanks so much for your help, and I think I will proceed pretty 

much like I have indicated.

Mr. Ntederleiiner. Thank you, sir.

Mr. Flowers. I recognize the gentlelady from Texas, Ms. Jordan.

Ms. J ordan. Thank you. Mr. Chairman.

I would like to call your attention to page 3 of your testimony in 

which you conclude by saying, “the Commission on Government Pro ­

curement recommended to Congress that the authorizations.” et cetera, 

“be m pk in permanent legislation rather than dependent on emergency.” You submitted that recommendation to the Congress in 1972.
63

Would you tel] me what action followed, where was it submitted and 

what action was taken? W hat did you do to help move tha t recommendation along?

Mr. Xiederlehner. I would think th at would go to the Government 

Operations Committee.

Ms. J ordan. Did it go ?

Mr. Xiederlehner. I am not aware of that. no.

Mr. J ordan. You did not followup, then, on this particular 

legislation?

Mr. Xiederlehner. No. because this Commission repo rt also established an Office of Federal Procurement, that is Government procurement, and the responsibility for contracting matters Governmentwide as distinct from the various agencies from a policy point of view now will reside in that office which is in the Executive Office of the 

President.

Ms. J ordan. AU right. Mr. Xiederlehner, now tell me. why is th at 

provision in our bill, which is on page 2. and states th at “such termination of emergency shall not affect,” and then if you go to sub 3, “any 

rights or duties that matured, or penalties that were incurred.” When 

you talk about missing-in-action persons in Southeast Asia, have not 

those rights matured and the duty of the Government matured? Is 

that not accepted under this sub 3 on page 2 of the bil I ?

Mr. Xiederlehner. Well, T do not think we could consider that 

rights have matured because we really do not know the s tat usof these 

individuals. Certainly if the individual officers had acquired rights 

prio r to the effective time of the statute they could not be removed by the statute, but I do not know that we could find that the right not 

to be retired, for example, would have vested in someone whose existence we are simply not aware of at this moment.

Ms. J ordan. All right, how does the emergency provisions that you 

refer to take care of missing in action? Where specifically is the language under which you discuss the rights of persons missing in action ? 

Where is the language of th is particular emergency legislation? Who 

are we talking about and how do you know tha t we aie talking about 

anybody ?

Captain "Williams. Ms. Jo rdan, if I could respond to that, please?

Ms. J ordan. Yes, sir.

Captain Williams. W hat the three sections of title 10 cited in the 

statement of Mr. Xeiderlehner refer to are the mandatory separation 

or retirement provisions of the officer management law. Those sections 

in themselves, or sections related to them provide the authority to the 

Presiden t to suspend the operation of those laws in tlie event of emergency or war. and this is the authority that we arc seeking to retain 

so that we can continue to suspend the automatic operation of the law which would force the involuntary separation or retirement of these 

officers.

Ms. J ordan. Would you agree that this is an arguable point, that the 

lull may. as we have dra fted it. and if it were to become law. that it may 

in effect except these persons who are missing in action, is that an 

arguable point?

Captain Williams. Ms. Jordan, not being a lawyer I vouhl have Jo 

defer to someone who had looked at the legal aspects on that.

Ms. J( rdan. Well, Mr. Danie’son, who is lawyer—---
64

Capt ain Williams. We have not interpreted it th at way in the personnel management area though.

Ms. J ordan. Mr. Danielson who is a lawyer and myself feel that that 

would be a case. We would like to tr y if we had to do that. On a contingency fee, yes.

Mr. Neiderlehner, do you need affirmative legislation in all of these 

areas th at you have mentioned ? Are they so essential to the day-to-day 

operation of your department, each one, th at affirmative legislation 

is needed to cover this given circumstance ?

Mr. Xiederlehner. Well, as your question is phrased, yes, in order to 

accomplish each of these purposes or to preserve each of these rights 

we would have to have additional legislation in the event of the termination of the emergency.

Ms. J ordan. And it is essential to your day-to-day operation tha t we 

preserve the righ t to appoint temporary chaplains ?

Mr. Xiederlehner. Assuming that we would want to appoint temporary chaplains I would say yes. Now, if you take any one of these 

and question whether the s tructure will survive wdthout it, I guess I 

cannot, I cannot argue that we would not get by.

Ms. J ordan. You would manage?

Mr. Xiederlehner. I would dare to say that with respect to chaplains, but as far as generals of the Marine Corps I would like to be 

excused.

Ms. J ordan. T have no fur the r questions, Mr. Chairman.

Mr. F lowers. I recognize the gentleman from Kentucky, Mr. 

Mazzoli.

Mr. Mazzoli. Thank you very much. Mr. Chairman.

Gentlemen, we appreciate your help today and your suggestions 

about the bill. I do not wish to belabor any point, but it does occur 

to me that, with the emergencies having existed at least on the books 

for 30 or 40 years, there does come a time for them to have be expunged 

from the record. Then whatever can stand on its own merits, whether 

promoting alien doctors, or keeping people in the service who would 

otherwise be R IF ’ed, or promoting astronauts out of order or what 

have you—if those things are important, and they are necessary for 

the fabric of conducting the Defense Establishment—then I think that 

the appropriate committee would support them. If they cannot, and 

in my personal view there are some tha t would not be able to pass 

muster today, then I think they will go down where they should have 

been down perhaps 10, 15 or 20 years ago. So this committee will be 

trying, it seems to me, to establish first that some emergencies ought 

not to be fictionally plastered across our statute books, and second, 

for those important aspects which have been triggered under existing 

emergencies, as we have seen them on the books, those would be 

rehabilitated and in a position to be rehabilitated so th at the Defense 

Department can manage its very serious functions. And I think that 

the statements you have heard today would indicate where this committee is on this point. And we are trying to make that balancing, and 

I think that with the proper efforts on your part, we can accomplish 

the iob.

Than k you very much, Mr. Chairman.

Mr. F lowers. Thank you, Mr. Pattison.

Mr. P attison. Thank you, Mr. Chairman.
65

Mr. Niederlehner, I think I understand the position of the Department of Defense, but it seems to me that the arguments we are hcaiing 

could just as easily have been constructed by the mind of a Lewis 

Carroll, or a Russell Baker, or perhaps a Jules Feiffer. It seems to me 

tha t emergency legislation is passed with an implied, in fact frequently 

explicit promise tha t after the emergency extraordinary measures will 

no longer be necessary, and we hear that every day in the Congress, 

almost every day, and in fact, almost all of the legislation we seem 

to enact is based upon some sort of an emergency. And the argument 

is always that this is just an emergency, it will be over very shortly, 

and as soon as these conditions change, then it will no longer be nec-

* essary to do this. And i t seems to me tha t that promise is exactly what 

is expressed in the concern of this bill, tha t we are trying to live up 

to that promise because the other argument, whenever emergency 

legislation is proposed is tha t look, don’t kid us, we know that the

*• emergency legislation proposed today is going to continue on forever,

and nobody is going to terminate the emergency. And I think tha t 

it is very difficult to make the argument tha t the emergency will 

terminate when these emergencies tha t have gone on for 34 years, 

obviously long after the actual emergency, have passed.

Xow, 1 understand the necessity as a lawyer for the use of legal 

fictions, and they are very useful sometimes, but ultimately, usually 

even in the courts we ultimately recognize that a fiction is a fiction, and 

tha t we will just simply do the thing that we originally accomplished 

by use of the fiction to st art with. I t is kind of a belated type of action 

on our part. I think it is long gone by. But I think it is about time tha t 

we operate honestly and say that this emergency, these emergencies 

are in fact over, and tha t to the extent that things have developed in 

the emergency period were valid, then to that extent, tha t same extent, 

we should propose those to the Congress and enact them into permanent law. And it seems to me that your concerns as expressed to this 

committee are, we understand those concerns, at least I understand 

those concerns, but 1 do not—I think you are expressing those concerns 

to the wrong committee. This committee cannot enact legislation based 

upon all of these things tha t have developed during the emergency. 

And I think those things ought to be properly presented to the appropriate committees of the Congress to deal with those partic ular m atters and let them stand or fall on their own merits. And I guess what T 

fc am asking from you, if there is a question implied at all, is that I would

like to know what your comments on those statements are. Th at turns 

tha t into a question from being a speech.

Mr. Xiederlehxer. First of all 1 would say that when Mr. Daniel-

• son and I left the Navy at the end of W orld War II we would never 

have suggested even in jest tha t emergency statutes would be in effect 

in 1975.

Mr. Daxtelsox. Mr. Xiederlehner, I swear I thought you were on 

the battleship J/am e.

Mr. Xiederlehxer. There is an old story th at the Pentagon building 

when it was designed in 1942 was built with wide ramps because it was 

going to be used for a hospital, and the ramps were to accommodate 

moving vehicles. There are at the present time 32.000 people in it and 

they are disposing of a tremendously large budget. I think we have 

just never had the chance to catch our breath since 1941, and if you
66

will pardon the expression. get back to normalcy. There has just been 

turmoil in the world, and emergency has been the pattern of our 

existence.

Mr. Pattison. You do not see any end to that ?

Mr. Nieoerlehner. I went to lunch with an oldtimer a few weeks 

back who was a lawyer in private practice and he told me tha t he was 

utterly shocked to see me stay in the Department of Defense in 1948 

because he thought that it was going to fold up within a few months, 

and I was not certain of th at myself. But I have been there for a long 

time, and I think that it is just the turbulence tha t the world has found 

itself in that we have never gotten down. I could not agree with you 

more that the proper way to do this would be to take a look at the 

structure and to deal with it with permanent legislation and get it 

settled tha t way. And we certainly hope that th at will occur.

Mr. P attisox. T have no fur ther questions.

Mr. F lowers. Thank you, I would in closing, as far as I am concerned, request that if after this discussion this morning and your 

review of the statement you feel tha t it would be in order, and I hope 

you will, to furnish us with some specifics as to the numbers of personnel tha t are involved, perhaps what they are doing. You sav live out 

of seven admirals at one point, and the kinds of jobs that are involved 

in this thing that make it important I think would have some bearing 

on our determination. And 1 would hope that you could give us some 

rath er specifics on that. I do not care about the name, rank and serial 

number or anything like that, but more of a specific line item than we 

have got here.

And before closing, T am going to give counsel a short opportunity 

here. Do you have anything, Mr. Shattuck?

Mr. Shattuck. Yes. Mr. Chairman, I would like to inquire of the 

witness concerning one of the provisions of the repealer section of the 

bill; tha t is. section 601. subsection (b) there provides for a deletion 

of the paragraph requiring that leases of nonexcess property have a 

provision making the lease revokable in times of emergency. Jus t what 

is this provision?

Mr. Ntederleiixer. This, Mr. Shattuck, is the so-called leasing statute which was passed. I think, about 1948. I think the question at tha t 

time was the validity of recapture provisions, and the statute was 

phrased in terms of requiring recapture clauses. I think the repeal of 

the requirement for a recapture clause would not prevent the Government from inserting recapture provisions.

Now, there was litigation involving this statute in California where 

there was a prohibition against restraints on alienation, and the Federal court to which the litigation was removed came to the conclusion 

that there was a superiority if you will, or a constitutional ascendency 

of the Federal provisions over the State prohibition, and the recapture 

provisions were held to be valid. But we do not feel tha t if there is 

removed the requirement that we insert a recapture clause that this 

will prevent us from approaching the matter from a contractual point, 

of view.

Mr. Shattuck. So you still have the righ t to include it in a lease 

should you so desire ?

Mr. N iederleiiner. That is what we would consider, yes, sir.

Mr. Shattuck. In subsection (g) of section 601, the same secction, 

there is reference to merchant ships. Is there any Defense interest in
67

tha t provision? Tliis has to do with a rath er old law concerning sale 

of merchant ships.

51 r. Niedekeehxer. 1 believe that is a ma tter of concern to the (. ommerce Department rath er than to us. This is section (g) ?

Mr. Shattuck. Ap parently if it has any reference at this point in 

time, it must be to old ships, because it goes all the way back to 1946.

You have indicated in your statement, Mr. Xiederlehner, that Defense has no objection to the deletion of the provisions in subparagraph 

(2) of section 602(a), that. is. the provision relating to the Ready Reserve. 1 take it t hat Defense did not recommend the inclusion of t hat 

provision in the bill ?

Mr. Niederlehner. I just do not know how that got in, 51 r. Shattuck. 

There were some discussions between the Senate committee stall and 

the representatives of the Office of 51anagement and Budget, and 51 r. 

Hoffman had some discussions with Senator 5Iathias just prior to the 

introduction of the bill. lie happens to be out of town at the moment, 

and who suggested section 673 1 just do not know.

Mr. Shattuck. Well, did not the Senate study start out as the study 

of all emergency statutes, and at one stage of their consideration were 

they talkin g about repealing emergency statutes?

Mr. Niedereeiixer. Well, as 1 understand it, this was the posture of 

the study, and one of the reports which we filed with the committee 

related not to termination of emergencies, but to concurrence in the 

repeal of a large number of statutes which related to real property. 

There were a substantial number of those, and we reported to the committee that there was no objection to the repeal of these, so that right 

up to the time that the bill was introduced it was not clear tha t we 

were dealing in the bill in this p artic ular form with the termination of 

emergencies, but rath er it was repeal of statutes. We had two reports 

in August of 1974, a separate one dealing with real estate, and then in 

August 1974 the report which dealt with the totality of the emergency 

statutes, and it was from this group tha t we had indicated an interest 

in retention of 60 out of the 400. And as 1 say, we later pruned the 60 

down to 10.

5Ir. S hattuck. Well then, is it possible this was a provision that was 

intended to be retained as an emergency statute, quite a different th ing 

than retaining its operational force?

5Ir. Niederlehner. It is quite possible that that could have happened because we would have strongly recommended against the repeal 

of this. As I say, until the Senate bill actually was introduced, we Wei’s 

trea ting this as a matter of repeal rath er than termination of emergency. Both of our reports, which I could furnish you if you would 

like, dealt with either the repeal or the retention of emergency statutes.

Mr. Shattuck. Yes; thank you very much.

Mr. F lowers. Mr. Coffey, do you have anything to direct to these 

gentlemen ?

Mr. Coffey. Jus t one question. 5Ir. Chairman. Th ank you. And it is 

in followup to a question asked earlier by Congressman 5Ioorhead, 

and it was begun to be answered, but I do not think it was really completed. He asked about the DOP5IA legislation, the Defense Officer 

Personnel Management Act and asked for an indication as to which 

items in your personnel administration list would be covered by this 

bill if passed. You began to answer it and I would ju st like to get it on
68

the record of we could. I thin k you began your answer on page 5 of 

your testimony. Did we cover everything there?

Captain AVilliams. Yes. sir, if I could, 1 think we could pick it up 

on page 6. That is where I think we were terminated.

Air. Coffey. Fine.

Captain Williams. At tha t time I believe I was addressing the two 

sections of title 10 tha t addressed the limitations of admirals and 

generals, section 5231(c) and 5232(b).

Air. Coffey. Would th at be covered by——

Captain Williams. No. 1 wanted to make sure tha t it was understood th at the Defense Officer Personnel Management Act as it is now 

written does not address the grades above colonel in the Army and Air «

Force or captain in the Navy. It was deliberately terminated at that 

grade.

Air. Coffey. So this is a problem that would have to be handled by 

other legislation? *

Captain AVilliams. It would have to have separate legislation of a 

follow -on nature.

A'r. Coffey. II ow about the next item ?

Captain Williams. That would be covered.

Air. Coffey. That is the 5-percent limit for early promotion?

Captain Williams. Yes. What the proposed legislation would do is 

to standardize this kind of thin g across all of the four Services, and it 

would change the limitation to 15 percent instead of 5.

Air. Coffey. All right. IIow about the next one on the list? The 

suspension of time-in-grade requirements for promotion ?

Captain AVilliams. Yes. Th at would be covered in the proposed legislation, as well as the first item on page 7 which addresses the emergency promotion authority of the Navy under section 5787.

Air. Coffey. All right. And did you indicate that the AHA question 

might be covered by a provision in DOPAIA as well?

Captain AA’illiams. Yes, sir.

Air. Coffey. Is there anyth ing else that would relate to the proposed 

DOPAIA legislation?

Captain AVilliams. There would be a number of other items that 

would relate. However, they are not the ones that we are asking for 

special consideration on, and they are not included in Air. Niederlehner’s statement.

Air. Coffey. The list of items on page 7 where it talks about dis- *

ability retirement, is tha t covered?

Captain AVilliams. No, sir. Tha t would be a separate problem. That 

would have to be addressed in any revision th at might come forth on 

the disability retirement system. «

Air. Coffey. All right. Thank you very much.

Air. F lowers. I f nobody has any more questions. I thank you gentlemen for being with us. And I will ask that the GSA. represented bv 

Air. Ph illip G. Read, Director of the Federal Procurement Regulations 

in the Office of Federal Alanagement Policy, come forward and we will 

hear from him next. Thank you very much, gentlemen.

Air. Nif.derleiixer. Air. Chairm an, thank you very much. AATe appreciate the opportunity to appear.

[The prepared statement of Air. Niederlelmer follows:]
69

Statement of Leonard Xiederleiiner, Deputy General Counsel, 

Department of Defense

Mr. Chairman and Members of the Committee. I am very pleased to have the opportunity to offer comments of the Department of Defense on H.R. 3884, “A Bill to terminate certain authorities with respect to National Emergencies still in effect, and to provide for orderly implementation and termination of futu re 

National Emergencies.” The Department of Defense favors the goal of II.R. 3884 to terminate obsolete or unnecessary au thorities based upon states of emergency. However, a relatively small number of the authorities currently dependent upon a state of emergency affect contracting procedures, personnel entitlements, and organizational struc­ ture of the Department of Defense; and it is believed tha t the Congress will want to enact permanent legislation to treat with these various subject matters. Legis­ lative proposals have been made to the Congress dealing with most of these items and it is hoped that they will receive attention in the near future. However, we recommend that they be exempted from the broad sweep of the pending bill until such time as the Congress has an opportunity to consider whether, and in what form, these authorities should be enacted into permanent law. World and national conditions have changed since President Truman officially proclaimed the state of national emergency in 1950 incident to the commence­ ment of hostilities in Korea. Many authorities which were used then for the first time were regarded as extraordinary. Since then, experience has demonstrated a need for these authorities in the regular conduct of the day-to-day operations of the Department of Defense. The desirability of terminating existing states of emergency is recognized and no objection to their termination is entertained by the Department of Defense. However, there are certain continuing needs which are accommodated by the existing national emergency proclaimed by President Truman in 1950 but which are not specifically provided for in H.R. 3884. The bill should provide an exception for each of the items I shall now refer to until such time as the Congress is able to consider permanent legislation to meet the 

particular need.

l . contracting authority

(a) Since 1941, there has been available to the Department of Defense autho r­ ity to deal with unusual contract circumstances. Termination of the national emergency would terminate such authority of the Department of Defense (and certain other agencies) under Public Law 85-804 (50 U.S.C. 1431—1435), the cur­ rent form of the 1941 statute. This statute provides au thority to correct mistakes in contracts, to formalize informal commitments, to indemnify contractors against losses or claims resulting from unusually hazardous risks to which they might be exposed during the performance of a contract and for which insurance, even if available, would be prohibitively expensive, and to grant other extraordinary contractual relief. The Commission on Government Procurement, established by Public Law 91-129, recommended to the Congress in 1972 that the authorizations of Public Law 85-804 be made available generally rather than being dependent 

upon the existence of a sta te of war or national emergency. (b) The procurement process within the Armed Services is utilized to accom­ plish certain major social and economic policies by the placement of contracts in labor surplus areas and in disaster areas, by letting contracts to favor small business, and to achieve a balance of payments favorable to the United States. These collateral policies are achieved through the emergency exception to the requirement for formal advertisement under the Armed Forces Procurement Act (10 U.S.C. 2304(a) (1)). The use of this emergency exception is limited by regu­ lation (32 CFR 3-201) to the achievement of the enumerated policies. In the light of the importance attached to these social and economic purposes, Congress should have the opportunity to consider the establishment of appropriate contracting 

procedures on a permanent basis.

2. personnel administration

A number of personnel procedures which have become basic to the current military structure are based upon a state of emergency. Major legislative proposals which place many of these personnel procedures on a permanent basis have been proposed but have not been enacted. The latest and most comprehensive of these
70

pro posa ls , th e Defen se Officer Per so nn el M an ag em en t Act, w as in trod uc ed in 

Ja n u a ry , 1974, bu t wa s no t ac red upon. It will be re su bm itte d to th e new Co ngres s 

in 1975 an d, if pa ssed by th e Co ng res s, will cu re mos t of th e prob lems I sh al l 

new men tio n. Th ese prob lems ca n be cla ssifi ed un de r tw o cat egories —th os e th a t 

•deal w ith D efen se org an iz at io n an d thos e th a t de al w ith pe rs on ne l en titlem en ts , 

o. D ef en se or ga ni za tion

(1 ) R et en tion of th e em erge nc y au th ori ty of 10 U.S.C. 3444 an d 8444 is re ­

quir ed fo r th e follo wi ng purp ose s:

(o ) To pr ov ide th e au th o ri ty to m ak e te m po ra ry ap poin tm en ts o f officers in th e 

C ha pl ai n, Ju dge Ad vocate, and M ed ica l fields, who, be ca us e o f co ns tr uct iv e serv ice 

cre dit in th eir sp ec ialit ies, a re co ns id er ed fo r per m an en t pr om otio n earl ie r th an 

lin e officer co unte rp ar ts , and who se se par at io n fo r fa il u re of pr om otio n mig ht 

becom e m an da to ry und er co nd itio ns in co ns iste nt w ith th e ne ed s of th e servi ce.

( ft i To pr ov id e th e au th o ri ty of th e Pre si de nt as Com man de r in Chief to g ra nt 

te m po ra ry ap po in tm en ts to ex ce pt io na l officers of th e Arm y or A ir Fo rce. (T he 

pr om otio n of t he A ir For ce a st ro n au ts .)

< c i To p ro vide t he au th o ri ty to ap poi nt alie n do ctor s in th e A rm y an d A ir For ce 

as off icers to me et cr it ic al sh ort ag es of m ilitar y med ical pe rson ne l.

(2 ) Ove r a pe rio d of yea rs th e pe rs on ne l st ru ctu re in th e nav al se rv ice ha s de ­

ve lop ed ar ound se ve ra l em er ge nc y auth ori ti es which no w fo rm th e ba sis of 

officer man ag em en t. Th ese au th o ri ti es in cl ude:

(a ) 19 U.S.C. 52 31 (c), whi< h su sp en ds ex is ting lim it at io ns on th e nu m be r of 

adm ir als and vice adm ir al s of th e Na vy . If th is au th o ri ty is not co ntin ue d, th e 

N av y wo uld lose ap pr ox im at el y one -h al f of its th re e- an d fo u r- st ar ad m iral s.

<&) 19 U.S.C. 52 32 (b) su sp en ds ex is ting lim itat io ns on lieute nant ge ne ra ls 

of th e M ar in e Co rps. If th is a u th o ri ty is no t co ntin ue d, th e M ar in e Co rps wo uld 

lose five o f the cu rr en tly au th ori zed sev en lieu te nan t ge ne ra ls.

ic t 19 I .S.C. 57 11 (b) auth ori ze s th e su sp en sion of th e sta tu to ry lim it of 5% 

fo r ea rl y prom otion selections specified in section 57 07 (c ).

(</) 19 I .S.C. 57 85 (b) is ne ed ed to susp en d tim e- in-g ra de re quir em en ts fo r 

pr om otion to all Na vy an d M ar in e Corps gr ad es ex ce pt li eute nant an d li eu te nan t 

co mm an de r. Thi s sta tu te is also th e auth ori ty fo r su sp en sion of th e m an dat ory 

pr om otion selection ra te pr ov isio ns fo r cert ain st af f co rps officers to gr ad es 

below re ar ad m iral .

(c» 19 U.S.C. 5787 pr ov id es fo r te m po ra ry pr om otio ns in th e Na vy. F ail u re 

to re ta in th is au th ori ty wo uld re quir e ap pr ox im at el y 659 lim ited dut y officers 

in th e gr ad e of lieu te nan t co m m an de r to re ve rt to th e gra de of lieu te nan t. Disco nt in ua nc e of th is auth ori ty wou ld also re qu ire Sen at e co nf irm ation of al l 

R eg ula r pr om otio ns to li eute nant (j unio r gra de).

ft. Personnel entitlemen ts

(1 ) T her e are cu rr entl y 913 mem be rs of th e ar m ed fo rc es wh o a re list ed as 

m issing in ac tion in So ut he as t Asia . On ly th e em erge nc y au th o ri ty of 19 U.S.C. 

3313. 63 86( c) , an d 8313 au th ori ze s th e su sp en sion of m an dat ory se par at io n an d 

re ti re m ent re qu irem en ts wh ich wo uld oth er w is e be ap pl ic ab le to allow som e 

o f th e s e mem be rs to rem ain in th e ar m ed forces until th ey re tu rn or are ac ­

co un ted fo r. W he th er or no t th eir si tu ati on is vie we d as w arr an ti n g c on tinu at io n 

of a national em erg ency, it wo uld l»e in eq ui ta bl e to fo rc e th eir se par at io n or 

re ti re m ent w hile they are in a m is si ng st atu s.

(2 ) T er m in at io n of the 1959 nati onal em erge nc y wo uld also te rm in ate en titlem en t to dis ab ility re tire m en t or se para ti on benefits und er 19 U.S'.C. 1291 an d 

1293 fo r mem be rs with les s th an 8 years of serv ice wh ose dis abil it y of 39 pe r 

cen t or more, alth ou gh in cu rr ed in lin e of du ty w hile on ac tive du ty, was no t 

th e pro xim ate re su lt of th e per fo rm an ce of ac tive du ty. Lo ss of th is elig ib ili ty —- 

which wo uld affect on ly th e ju n io r officers an d en listed me n— is par ti cu la rl y 

unti m ely whe n th e ar m ed forces a re en de av or in g to m ee t th eir man po w er ne ed s 

th ro ug h volu nta ry me ans.

Th e D ep ar tm en t reco mmen ds th e d el et io n fro m th e bill of s ub se ction 692( a) ( 2) 

■“Se ction 673 of ti tl e 19, U ni ted S ta te s C od e: ” th is sta tu te pr ov id es auth ori ty to 

ord er to act iv e du ty mem be rs of th e R ea dy Res erve “I n tim e o f' n ati o n al em erge ncy de cl ar ed by th e Pre si den t a fte r Jan u ary 1. 1953.’r

 Thi s sta tu te wo uld no t 

l>e affected by te rm in at io n of exis ti ng em erge nc ies .

In vie w of th e need fo r co ntinuat io n of th e auth ori ti es I hav e re fe rr ed to, 

■the D epar tm en t of Defen se reco m men ds th a t an y le gi sl at io n te rm in ati ng em er-
71

g<»ncy po wers ex ce pt th e ci te d sta tu te s from it s eff ect unti l such tim e as th e Con gress lia s th e opport unity to co ns id er the ne ce ss ity fo r per m an en t legi slatio n. Fin al ly , th er e is one pr oce dur al re qui re m en t of II.R . 3884 wh ich is no t re al istic. I re fe r to the prov ision in su bs ec tio n 50 1( c) which re quir es a re port to Co ng ress on to ta l ex pe nd iture s w ithin th ir ty da ys a ft e r th e en d of ea ch qu art er duri ng a nat io nal em ergency pe riod . Th e th ir ty -d ay re port in g re quir em en t does no t prov id e suf ficien t tim e to co lle ct th e re qui re d d ata fo r tr an sm it ta l to Co ng res s. N in ety da ys wo uld be mor e appro pri ate to ac co mplish th e ta sk pr op er ly.

N at io na l Lea gu e of F a m il ie s of

A m er ic an P ri so ne rs an d M is sin g in So u th ea st Asia ,

Washington, D.C., A pril 11, 1975.

H o n . W al te r F lo w er s,

Chairman, Subcommittee on Administrative Law and Governmental Relations,

Washington, D.C.

P ear Cha ir man F lo w er s: As Exe cu tiv e D irec to r of th e N at io na l Lea gu e of 

Fam il ie s of American P ri so ners an d Miss ing in S outh ea st As ia an d on beh al f of th e fa m ili es an d th eir M issing an d P ri so ner s of W ar lov ed one s, I am re ques t­ in g th at cert ain key pro vi si on s be ex em pted from th e N at io nal Emerge nc ies A ct 

(I I.R . 388 4). Th e reason fo r th is re ques t is to pr ev en t a p re m atu re se par at io n fro m se rv ic e of an y man th a t is clas sif ied PO W or AIIA in South ea st As ia. I don t lie’iev e an y serv ice ha s such a clas sifica tion as Co lon el Jo hn Po e, PO W /M IA re ti ie d . 

I kn ow we do n't w an t one. It is my un de rs ta ndin g th a t und er Secti on G0 2(a ) of II. R. 3884 such ex em pt io ns may be ma de. I be lie ve th e spe cific ex em pt io ns wo uld be co ve red in 10 L’.S.C. 

§3 31 3: 10 U.S.C. § 638 0( c) and 10 U.S.C. §8313 .

Ve ry tr uly yo ur s, „

E. C. “B us” Mil ls,

Executive Director.

Mr. F lowers. Tha nk yon very much . Mr. Re ad, if you will iden tif y 

those, tha t you have with you and proc eed as you see fit. We are ru n­ ni ng short on time and we apologize fo r this, but hopeful ly we will no t hav e as many que stio ns to ask GSA as we did Defense. Pro ceed, 

sir .

TESTIMONY OF PH IL LI P G. READ, OFFICE OF FEDERAL MANAGEMENT POLICY. GENERAL SERVICES ADMINISTRATION. ACCOMPANIED BY: CHARLES CURCIO. ASSISTANT GENERAL COUNSEL,

GSA; AND THOMAS HAGAN, OFFICE OF PREPAREDNESS. GSA

Mr. Read. Th an k you. Mr. Ch airma n. I hav e wi th me on my le ft Mr. Charles Cur cio. As sis tan t Gener al Counsel of the Gen eral Se rv ­ ices Ad minist ratio n, anil on my ri ght Mr. Tom Ilag an . who is with ou r Office of Pr ep ared ne ss, Office of Ge neral Services Ad minist ratio n. It is indeed a ple asu re to have this op po rtun ity to presen t to th is com mittee the views of th e G ene ral S ervices A dm inist ratio n rega rd in g II.R. 3884, a hill to term inate certa in au thor ities wifh resp ect to na ­ tio na l emergencies still in effect, a nd to provide f or or de rly im ple me ntatio n and term inatio n of fu ture na tio nal emergencies. Before com mentin g oil the detai ls of th is pro posed leg islation, I 

wou ld like to say a few words about the basis of GSA ’s interest in th e bill. Am ong othe r things , the bill wou ld have a direc t impac t on procure me nt by ex ecutive age ncies an d G SA is concerne d w ith Go vernment. pro curem ent in sev era l ways.
72

I would like to depart from my prepared statement at this point 

to just make this observation. We do not present any personnel problems to you this morning.

First, ( tS A buys a wide range of items of personal property including automated data processing equipment, and nonpersonal services. including construction. GSA is aiso concerned with leases of real 

property.

Second. GSA is responsible for the issuance of the Federal procurement regulations which are applicable to the procurement of civilian 

executive agencies. GSA is charged with this responsibility by the 

Federal Property and Administartive Services Act of 1949. as 

amended by the Office of Federal Procurement Policy Act. Let me 

add to that remark tha t the Federal procurement regulations are 

prescribed by the Administrator of General Services in chapter 1 

of title 41 of the Code of Federal Regulations.

Third, Executive Order 11717 transferred certain responsibilities 

regarding procurement and other matters to GSA tha t previously 

were handled bv the Office of Management and Budget. In connection with that order, the President issued a statement on May 22.1973. 

which directed GSA to assume a broader management role by becoming the Presiden t’s principal instrument for developing better systems 

for providing administrative supp ort to all executive branch activities.

A matter of continuing concern to GSA is its ability to effectively 

discharge its procurement responsibilities—in this sense T have reference to our direct procurement and contracting activities—and 

to issue regulations. And which will facilitate the Government procurement process.

Now. let me indicate how TT.R. 3884 is related to the procurement 

process. This occurs in three ways; namely, in connection with the 

authority to negotiate Government contracts, the assignment of 

claims under Government contracts, and the leasing of real property.

Regarding the negotiation of contracts, section 302(c) (1) of title 

Federal Property and Administrative Services Act of 1949, 41 U.S.C. 

252, permits civilian executive agencies to negotiate contracts in certain specified situations. One of these situations involves contracts 

where it is “determined to be necessary in the public interest during 

the period of a national emergency declared by the President or by 

the Congress.”

The national emergency authority to negotiate is relied upon as 

the procedural basis for the award of contracts involving unilateral 

set asides for small business concerns, partial set asides for labor surplus area concerns, and the limitation of certain contracts to the 

procurement of domestic end products in the interest of improving 

the I .S. balance of payments. No other negotiation authority is 

available. As a result, awards for these three very worthwhile purposes would have to be discontinued if a declaration of national 

emergency ceased to exist or if some other negotiation authority is 

not provided.

I would like here to supplement mv prepared statement with some 

remarks concerning a question you asked Mr. Xiederlehner. Mr. Chairman. The question involved your concern about any ongoing activities 

to provide additional legislation as a substitute for the negotiating 

authority which we presently utilize, and which is paralleled in the
73

Armed Services Procurement Act and is utilized by the Defense De­ partment. As Mr. Niederlehner indicated, the Commission on Govern­ ment Procurement issued a very lengthy report, some 149 recommen­ dations were included in the report, and one of the recommendations of the Commission was t ha t the two basic procedural statutes under which the executive branch of the Federal Government does its pro­ curements; namely, title H I of the Federal Property and Administra­ tive Procedures Act and the Armed Services Procurem ent Act be com­ bined into one statute. W ork is in process to accomplish that objective, and I believe that a bill was introduced during the last Congress. As I recall it was H.R. 9061. which was in the natu re of a combined statute. The proposal that was initiated at that time, and work is still continuing on a. similar bill, would eliminate the series of negotiating exceptions which are enumerated in the P roperty Act and the Armed Services Procurement Act. In lieu thereof the current proposals con­ templates a general authority to negotiate on a competitive basis. And I believe that this legislation, if enacted, would provide us with the negotiating authority we need in order to make unilateral set asides for small business, partial set asides for labor surplus and the limita­ tion of procurement to domestic sources for balance-of-payments p ur­ poses. So there is. in fact, work in process in this area, and it basically responds to one of the recommendations of the Commission on Government Procurement. With respect to the assignment of claims, the provisions of the As­ signment of Claims Act of 1940, 31 U.S.C. 203 and 41 U.S.C. 15, per­ mit claims for moneys due or to become due a contractor from the Government to be assigned to a bank, trust company or other financ­ ing institution. This is a useful means for financing Government con­ tracts, but initially the usefulness of assignments was impaired be­ cause. they were deemed to be subject to reductions or set off by the Government. To remedy this situation, the act was amended to pro­ hibit reductions or set offs durin g periods of war or national emer­ gency. It follows, therefore, tha t a desirable means of financing Government contracts would be sharply curtailed if a declaration of national emergency ceased to exist or if some other authority to pro­ hibit reductions or set offs is not provided. The leasing of space is subject to statutory limitations. 40 U.S.C. 278(a), regarding permissible expenditures for rentals and for a ltera ­ tions and improvements. On occasion, situations arise where these limitations are not in the national interest. As a result, statutory au­ thority. 40 U.S.C. 278(b), has been provided which makes the limita­ tions inapplicable during a national emergency. The continued availability of the national emergency authority or some alternate au­ thority is essential to the regular functioning of the Government. In connection with our concern for the continued availability of the four statutory autho rities I have referenced, we are gratified to note that section 602 of the bill contains a savings provision which states that the bill is not applicable to six statutes, including the four refe r­ enced statutes, except to provide for a review of these statutes by the appropriate committees of the Senate and the House of Representa­ tives. Following the review, the committees would make recommenda­ tions and propose revisions to th eir respective Houses within 270 days
74

afte r enactment of the bill. This arrangement should insure the continued availability of necessary procurement authority.

Our remaining concern regarding this projjosed legislation involves 

the reporting requirements in section 501(c). We appreciate that the 

Congress needs information in order to discharge its obligations under the bill. It seems doubtful, however. that a report of total expenditures will satisfy the congressional need. Furthermore, the submission of reports within 30 days after the end of each 3-montli period 

following a declaration of emergency would be extremely difficult.

Regarding the utility of the report, small expenditures may relate 

to contract awards of extreme importance to the national interest. 

Conversely, large expenditures may bear little relationship to matters 

of national concern. Thus, some narrative explanation probably would 

be necessary or the Congress may find the reports inadequate for its 

purposes.

With respect to the 30-day reporting period, literally thousands of 

government offices may be involved in the reporting operation whenever a declaration trigger's the reporting requirement. Initial reports 

inevitably will be late and past experience iirdicates that regular submissions may not satisfy a 30-day schedule.

As an alternative arrangement, we suggest that the reporting requirement be revised to require a very brief narrativ e statement, on 

an agencv-by-agency basis, regarding the use of a given declaration 

of national emergency and the consequences of a termination of the 

authority.

With respect to the bill generally, we would not oppose its enactment. Ou r only concerns are the continued availability of authority 1o 

achieve necessary procurement objectives and the adoption of appropriate procedures for the administration of the bill.

This concludes my prepared statement. Mr. Chairman. T would be 

pleased to respond to any questions you may wish to raise.

Mr. F lowers. I would just ask hv way of getting on for yon to reiterate concisely, sir. the four major concerns that von discussed in 

the early part of your statement which are covered by the savings 

clause in the hill that have been used, is that correct ?

Mr. Read. That is correct.

Mr. Flowers. Your other major concern then is merely the time in 

whieh to report and the kind of report, is tha t correct ?

Mr. R ead. That is correct. Mr. Chairman.

Mr. F lowers. Thank you very much. I will ask Mr. Danielson if 

he has any questions.

Dlr. Daxtelsox. T have a couple, really on one subject. T understand 

your statement and T am not goingtobelabo r it.

I am trying to grasp for the application of these emergency provisions. In your point 1(b ). on negotiating unilateral ret asides for 

small business, partial set asides for labor surplus, balance of payments, and again on your leasing on page 4. the leasing of space, von 

apparently are able to disregard these statutory limitations in title 40, 

section 278(a) because of the 278(b) proviso that as long as there is 

an emergency you can ignore 278(a) ?

Air. Read. Correct.

Mr. Daxtelsox. You are operating. I assume, as was Defense on 

the Korean emergency ?
Mr. Read. T ha t is right, the Truman emergency statement of 1950.

Mr. Danielson. Am T correct in assuming that there may have been 

times when you have invoked 278(b) and been able to avoid the use 

of the limitations in 278(a) because the Korean emergency is still 

in effect ? You do that I presume, do you not ?

Mr. Read. That is correct.

Mr. Danielson. I thought it was. Otherwise you would not be here 

worrying about the a uthority expiring.

Mr. Read. We had an experience-----

Mr. Danielson. Do you suppose, sir. there may have been a few 

cases in which, and T do not think this is illegal, so 1 want to disarm 

you of the defense tactic here, but do you suppose you might have 

invoked 278(b) on a few cases that did not relate to the Korean war?

Mr. Read. Well, I cannot say that the prime case that we had in 

mind related to the Korean situation but it was an emergency. M e 

had a fire which started to burn up a substantial quantity of personnel 

records of the Federal Government, and but for the emergency leasing 

authority which perm itted us to move the records quickly into a facility that was not subject to being demolished, we might have lost more 

of the records. There really was an emergency in that case and it 

did not relate to Korea. However, it was a very present thing.

Mr. Danielson. And on these permissible expenditures for rentals 

for alterations, improvements, it is alterations and improvements. T 

would imagine you gentlemen in the work of GSA. leasing real estate 

all over the country, office space, probably for some of us. who knows, 

you are able to ignore the limitations of 278(a) in what you consider 

to be a proper case regardless of the status of the war in Korea ?

Mr. Read. I think th at is a fair statement.

Mr. Danielson. I get your point, and I would just like to say that in 

sum of your whole statement are you not saying this: lo u are not 

opposed to the enactment of H.R. 3884. provided tha t something is 

done by the appropriate committee and the Congress to see to it that 

you have what you consider the essential authority to operate in the 

real world of 1975 ?

Mr. Read. That is correct. We. I think quite clearly have an obligation to achieve some very significant socioeconomic obiectives which 

the Congress has endorsed over the years. Other objectives have been 

sponsored by the President. For example, assistance to labor surplus 

areas bv wav of a Presidential policy statement which we have operated. under for several years, and that sort of thing.

Mr. Danielson. T am going to suggest this as a friendly recommendation, because I have got a feeling that this committee is going to get 

on with this bill, if you would sit down and work out a draft of some 

proposed legislation, or a legislative program to take cam of vour real 

needs in a form of substantive law. and Ft «is get off of tins hangup 

of emergencies. You know, we are just kidding ourselves here.

Mr. Read. Well, as I indicated »n mv earlier remarks. I think that 

if the work continues on H.R. 9061. nursuant to the recommendation 

of the Commission on Government Procurement for a combined procedural permanent statute, that the problem of negotiating authority 

for the three situations I mentioned will be resolved.
76

Mr. Danie lson. P er ha ps if we move ahead wi th alac rity here th at 

w ill giv e the m a mo tivation to move a lit tle faster on the o ther side. I 

th an k you.

Mr. F lowers. L et me say to the gen tlema n fro m Califo rn ia th at I 

fina lly go t my office paint ed in Tuscaloosa in the Fe de ral build ing , 

and I am wo nderi ng i f th at was d one under emergency powers.

Th e ge ntl ela dy f rom Texas.

Ms. J ordan. Ju st one question. Are you pro posing. Mr. Read, an 

am endm ent to the acc ounting pro ced ure s as they are set out in the 

bill?

Mr. R ead. Are you ta lk ing a bou t th e assignme nt of claims ?

Ms. J ordan. No.

Mr. Read. Oh, r ep or tin g; yes, it would seem t o me t hat we have two 

problems there. One is the abilit y o f th e f arflu ng offices of the executive 

branch to respond and to prov ide the sta tistic al inform ation on a 30- 

da y basis. The second is wh eth er when you get the information it will 

rea lly be me aning ful and he lpf ul to you to arriv e at a decision.

Ms. J ordan. We ll, would the 30-day li mita tio n in there pose a h ar dsh ip on yo ur a gency?

Mr. Read. T t hink it would be e xtrem ely difficult fo r all of th e agencies o f the F ed era l Governme nt.

Ms. J ordan. Let us just ta lk about yo ur agency. Could you do it?

Mr. Read. W e could do it with difficulty. We h ave re po rtin g mechanisms now th at work on a slig ht ly lon ger a rra ng em en t. 45 days, and 

even wi th 45 day s we find th at a numb er of offices are late . So from 

experie nce we find th at a 30-day period is a very tight tim e frame 

in which to op erate.

Ms. J ordan. Bu t you could do it ?

Mr. R ead. We can certai nly tr y.

Ms. J ordan. No f ur th er que stions.

Mr. F lowers. Mr. Mazzoli ?

Mr. Mazzoli. Th an k you very much , Mr. Ch air ma n. Pe rh ap s the 

question ha s been asked in mv absence, but if i t has not, was th ere any 

con nection betwe en the use of nationa l emergencies f or th ings lik e setasid es in contr acts and pa rtia l set-asides fo r labo r su rplus area concerns, a nd the assignme nt of claims and le asing of spa ce 1

Mr. Read. I t is difficult to find a relat ionship betw een a natio nal 

em erg enc y an d the three sit ua tio ns th at I alluded to, small business, 

labo r s ur pl us and balanc e o f p aym ent s. To be p erfectly fra nk , we were 

faced wi th a p roc ure me nt pro ble m which had to be han dled on a negotia te d basis. I t was no t possible to form all y advertise th e pro cureme nt actio ns th at were involved in those three areas. Th e cu rre nt 

proc ed ural s tatutes that b oth the D efense D ep artm en t and the civilian 

agencies op era te un de r have specific ally enum era ted ne go tia tin g situ ­

atio ns. Th ere was no specific sit ua tio n th at wou ld fit any one of these 

three are as, so the only th in g we could rely on was the na tio na l emergency au thor ity , based on a de cla ratio n of natio nal emergency. P erfec tly honestly, it was the on ly au thor ity we had available and the 

only th in g th at we could rel y on. W ith ou t it we simply co uld no t have 

proceeded with those three prog ram s.

We have felt fo r ma ny ye ars th at some kind of pe rm an ent leg islatio n fo r these pur poses would be a be tte r arr an ge me nt.
77

Mr. Mazzoli. And have you proposed such permanent legislation?

Mr. Read. At the present time, as I indicated a little b it earlier, a bill was introduced in the House d uring the last session tha t would combine the two procedural statutes under which the Federal Govern­ ment operates, and would provide us with the negotiating auth ority that we need without reference to a national emergency. With respect to the assignment of Claims Act, I thin k that was a matter tha t grew out of a wartime situation and the solution was based on a declaration of national emergency. Here again, I think that there is no realistic relationship between the reference to reduc­ tions or setoffs and the national emergency. I think we can solve this problem by permanent legislation.

Mr. Mazzoli. Has this been introduced, Mr. Read ?

Mr. Read. No ; this has not been introduced.

Mr. Mazzoli. Do you plan to have or is there a piece of legisla­ tion in the works in your Department to do so?

Mr. Read. There is no legislation in the works in our Agency, or to the best of my knowledge did the Commission on Government P ro­ curement address itself to this problem. But it was one I think t ha t we would most assuredly recommend to the new Office of Fede ral Procurement Policy for its consideration as an ongoing matter.

Mr. Mazzoli. How about the last one in the leasing of space? Is that of the same category as the assignment of claims—not really di­ rectly involved in a national emergency, but better handled by some 

permanent legislation ?

Mr. Read. I would thin k this could quite properly be handled by permanent legislation. I think it is probably another one of these items tha t has grown up over the years, but at this point could be handled on a permanent basis.

Mr. Mazzoli. Tha nk you very much.

Mr. F lowers. Than k you. Mr. Pattison?

Mr. Pattison. I have no questions.

Mr. Flowers. I would like to yield to counsel. Do you have a 

question ?

Mr. Shattuck. Yes; Mr. Chairman, I believe in your statement or in the response to a question you indicated that there were some par­ allels between the problems faced by the Defense Departm ent in the contract area and the provisions in the bill and the ones tha t you have referred to, is that correct?

Mr. Read. Yes; you recall Mr. Niederlehner made reference to the small business, labo r surplus, balance-of-payments problems. You see, when the Armed Services Procurement Act was passed in 1947, it was really in its day the modernized procurement statute. In 1949, the title 3 of the Pro perty Act was passed, and it was v irtually a mir ror image of the Armed Services Procurement Act. The two statutes pro­ vided the same procedural basis for all Government procurement with the result tha t formal advertising was preferred , but we were per­ mitted to negotiate in certain situations which were enumerated in both statutes. When over the years we encountered the problem of negotiat­ ing a unilateral small business set asides, or partial set asides for labor surplus areas, or procurements of domestic products for balance52 -2 18 — 71 6
78

of-payments purposes, th e Department of Defense under its statute, 

the Arme d Services Procurement Act. and the GSA and all of the 

civilian executive agencies under the Property Act had exactly the 

same problem; namely, what negotiating authority to rely on.

The Defense Department relies on the national emergency negotiating authority in the Armed Services Procurement Act and we on the 

civilian side rely on the national emergency negotiating authority to 

the Federal Prop erty Act. The two statutes are parallel. We have the 

same problem, and we rely on the same kind of auth ority but in two 

different statutes.

Mr. Siiattuck. If that is the case, why does not the bill have an 

exception for the parallel provision in the Armed Services Procurement Act?

Mr. Read. We asked ourselves the same question as we sat here 

looking at the list of exceptions this morning, and I really do not 

know the answer.

Mr. Shattuck. Since its provisions are essentially identical?

Mr. Read. Yes, they are, and I would think the logic of the matter 

would be to include the Armed Services Procurement Act in tha t 

laundry list.

Mr. Stiattuck. Well, since this bill was evolved in consultation 

with particularly the Office of Management and Budget, I just wondered why tha t was not true?

Mr. Read. Well, I regret that I cannot respond to your question. 

I do not know what the mental processes might have been in OMB 

with regard to the matter.

Mr. Shattuck. Thank you, perhaps it was an unfair question.

The other point I just wanted to raise in passing is tha t the bill, H.R. 

9061, along with H.R. 9062 was referred to this committee last year. 

We requested departmental reports from GSA and from the Defense 

and other principal contracting agencies. But I take it that t ha t request may have triggered the study of the provisions tha t you have 

just referred to?

Mr. Read. Well, we are currently looking at the bill and considering 

what we think would be app ropriate suggestions for changes. We are 

in the process of working with the Office of Federal Procurement 

Policy on the matter, so if you do not have it, I would anticipate that 

it would be coming forward in the foreseeable future. Certainly, from 

the executive branch standpoint, we are working actively on the matter.

Mr. Shattuck. Thank you very much.

Mr. F lowers. Air. Coffey?

Air. Coffey. No questions.

Air. F lowers. I'hank you very much. Does anyone else have any 

fur the r questions?

Well, we will thank you gentlemen for being with us as we did the 

others, and we appreciate your help on this p artic ular matter.

[The prepared statement of Air. Read follows:]

Sta te men t by P h il ip G. R ead, Director, F ederal P rocub eme nt Regu lat ions Sta ff, Off ic e of F ederal Man ag em en t P olicy, General Services Adm in is ­

tration

Mr. Chairman and members of the Committee, I am Philip G Read Director 

Federal Procurement Regulations Staff, Office of Federal Management Policy’ 

General Services Administration. It is indeed a pleasure to have this opportunity
79

to present to this committee the views of the General Services Administration regarding H.R. 3884, a bill to terminate certain authorities with respect to na­ tional emergencies still in effect, and to provide for orderly implementation and termination of future national emergencies. Before commenting on th e details of this proposed legislation, I would like to say a few words about the basis of GSA’s interest in the bill. Among other things, the bill would have a direct impact on procurement by executive agencies and GSA is concerned with Government procurement in several ways. First, GSA buys a wide range of items of personal property (including auto­ mated data processing equipment) and non-personal services (including con­ struction). GSA is also concerned with leases of real property. Second, GSA is responsible for the issuance of the Federal Procurement Reg­ ulations which are applicable to the procurement of civilian executive agencies. GSA is charged with this responsibility by the Federal Property and Administra­ tive Services Act of 1949, as amended by the Office of Federal Procurement Policy 

Act. Third, Executive Order 11717 transferred certain responsibilities regarding procurement and other matters to GSA that previously were handled by the Office of -Management and Budget. In connection with tha t order, the President issued a statement on May 22, 1973, which directed GSA to assume a broader management role by becoming the President’s principal instrument for developing better systems for providing administrative support to all executive branch 

activities. A matter of continuing concern to GSA is its ability to effectively discharge its procurement responsibilities and to issue regulations which will facilitate the Government procurement process. Now, let me indicate how II.R. 3884 is related to the procurement process. This occurs in three ways, namely, in connection with the authority to negotiate Gov­ ernment contracts, the assignment of claims under Government contracts, and the leasing of real property. Regarding the negotiation of contracts, section 302(c) (1) of Title II I of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 252), per­ mits civilian executive agencies to negotiate contra cts in certain specified situa­ tions. One of these situations involves contracts where it is “determined to be necessary in the public interest during the period of a national emergency de­ clared by the President or by the Congress.” The national emergency authority to negotiate is relied upon as the procedural basis for the award of contracts involving unilateral set asides for small business concerns, partial set asides for labor surplus area concerns, and the limitation of certain contracts to the procurement of domestic end products in the interest of improving the U.S. balance of payments. No other negotiation authority is avail­ able. As a result, awards for these three very worthwhile purposes would have to be discontinued if a declaration of national emergency ceased to exist or if some other negotiation authority is not provided. With respect to the assignment of claims, the provisions of the Assignment of Claims Act of 1940 (31 U.S.C. 203 and 41 U.S.C. 15), permit claims for monies due or to become due a contractor from the Government to be assigned to a bank, trust company or other financing institution. This is a useful means for financing Government contracts, but initially the usefulness of assignments was impaired because they were deemed to be subject to reductions or set off by the Government. To remedy this situation, the Act was amended to prohibit reductions or set offs during periods of war or national emergency. It follows, therefore, tha t a desirable means of financing Government contracts would be sharply curtailed if a declaration of national emergency ceased to exist or if some other authority to prohibit reductions or set offs is not provided. The leasing of space is subject to statutory limitations (40 U.S.C. 278 (a)) regarding permissible expenditures for rentals and for alterations and improve­ ments. On occasion, situations arise where these limitations are not in the national interest. As a result, statutory authority (40 U.S.C. 278(b)) has been provided which makes the limitations inapplicable during a national emergency. The continued availability of the national emergency authority or some alter nate authority is essential to the regular functioning of the Government. In connection with our concern for the continued availability of the four statu tory authorities I have referenced, we are gratified to note t hat section 602 of the bill contains a savings provision which states t ha t the bill is not applicable to six statutes (including the four referenced sta tutes), except to provide for
80

a review of these statutes by the appropriate committees of the Senate and the 

House of Representatives. Following the review, the committees would make 

recommendations and propose revisions to their respective Houses within 270 

days after enactment of the bill. This arrangement should ensure the continued 

availability of necessary procurement authority.

Our remaining concern regarding this proposed legislation involves the reporting requirements in section 501(c). We appreciate that the Congress needs information in order to discharge its obligations under the bill. It seems doubtful, 

however, t ha t a report of total expenditures will satisfy the Congressional need. 

Furthermore, the submission of reports within 30 days afte r the end of each 

3 month period following a declaration of emergency would be extremely 

difficult.

Regarding the utility of the report, small expenditures may relate to contract 

awards of extreme importance to the national interest. Conversely, large expenditures may bear little relationship to matters of national concern. Thus, some 

narrative explanation probably would be necessary or the Congress may find 

the reports inadequate for its purposes.

With respect to the 30 day reporting period, literally thousands of Government 

offices may be involved in the reporting operation whenever a declaration triggers 

the reporting requirement. Initial reports inevitably will be late and past experience indicates that regular submissions may not satisfy a 30 day schedule.

As an alternative arrangement, we suggest that the reporting requirement be 

revised to require a very brief narrative statement, on an agency by agency basis, 

regarding use of a given declaration of national emergency and the consequences 

of a termination of the authority.

ith respect to the bill generally, we would not oppose its enactment. Our only 

concerns are the continued availability of authority to achieve necessary procurement objectives and the adoption of appropriate procedures for the administration of the bill.

This concludes my prepared statement, Mr. Chairman. I would be pleased to 

respond to any questions you may wish to raise.

Vr. Flowers. We will call this meeting to a close and continue on 

Wednesday, April 9, which is a week from next Wednesday, in room 

2226 at 10 a.m. when we will receive testimony from Justice and State, 

and hopefully that will conclude, at least as far as we have any knowledge, our hearings on this matter.

Than k you very much, gentlemen.

[Whereupon, at 11:53 a.m., the hearing was concluded subject to the 

call of the Chair.]
NATIONAL EMERGENCIES ACT

W ED N ESD A Y , A P R IL 9, 19 75

H ouse of Representatives,

SUBCOM MITT EE ON AD MIN ISTRAT IVE L aW

and Governmental Relations

of th e Comm ittee on th e J udiciary,

VV ashin gto n, D .C.

Th e subco mm ittee met, pu rsua nt to notice a t 1 0:30 a.m., in room 2226r

Ra yb ur n Ho use Office Bu ild ing , Ho n. W al te r Flow ers [cha irm an o f 

the subco mm ittee] pre sid ing . P re se nt: R ep resentati ves Flow ers , Jo rd an , Mazzoli, and Mo orh ead . Also p re se nt: William P. S ha ttu ck , cou ns el; and Al an F. Coffey, J r. , 

associate counsel.

Mr. F lowers. The subc omm ittee will come to orde r. Our fi rst witness th is m orn ing is M r. M ark Fe ldman , D ep ut y Le ga l Ad vis er, D ep ar tm en t o f Sta te. M r. Fe ldman , if you wou ld like to pro ­ ceed, we will be d elighted to he ar you r tes tim ony a t th is time.

TESTIMONY OF MARK B. FELDMAN, DEPUTY LEGAL ADVISER, 

DEPARTMENT OF STATE

Mr. F eldman. Th an k you, Mr. C ha irm an. Th e Dep artm en t of S ta te appreciat es the op po rtu nity to te stify on H.R . 3884, a bill “to term inate ce rta in au thorities with res pect to na tio na l emergencies sti ll in effect, an d to pro vid e for orderly im ple­ me nta tio n and term inatio n of fu tu re n atio na l emergencies.” Thi s bill is v ery much the sam e as S. 3957 pas sed b v the Senat e las t session. Th e Dep artm en t of St ate believes t h at it i s ap pr op riate to ree xa m­ ine th e na tio na l emergency au thor iti es at t hi s time, to repeal obso lete au tho rities , and to set c riteria f or n ationa l emergencies w hic h may be dec lared in the fu tu re . H.R. 3884 does this, an d at the same t im e pre ­ serves m ajor em erg enc y au thorities th at are essential to th e con duct of foreign rel ati ons. Th e Dep artm en t wishes to speak par ticu la rly in su pp or t of section 602 o f H.R. 3884 wh ich preserves e ssentia l au th orities. The Dep ar tm en t of St ate is pr im ar ily concerned wi th section 5(b ) of the T ra di ng W ith Th e En em y Ac t, which pro vid es the basic leg al au th or ity fo r a nu mber of pr og rams of m ajor forei gn policy im po rtance. The se inc lu de : Fo reign asse ts control reg ulati on s, Cuban asset con trol regu latio ns , an d fore ign fu nd s contr ol reg ula tions. Und er the se prog rams, tra ns ac tio ns are proh ibite d which involve persons or p ro pe rt y subje ct to U. S. j ur isdictio n an d which t ak e pla ce wi th Cuba, Nor th Vietn am , Nor th Ko rea, an d desig nated na tio na ls

(81)
82

of those c ountries, unless specifically or ge neral ly licensed. I n ad dit ion , 

pr op er ty in which those countries or th eir na tio na ls have an inter est 

has been blocked and is un de r U.S . Governm ent con trol. We also are 

ho lding assets o f the Pe ople's Republic of C hina, bloc ked b efore May 

1971, an d assets of certa in Eas te rn Eu rope an cou ntries. While the 

am ounts of the block ed assets va ry, in some cases it is substan tia l, 

fo r e xamp le possibly in excess o f $80 m illion in th e case o f th e P eople ’s 

Re pu blic of China.

Mr. Ch air man, an in te rrup tion of thes e prog rams would seriously 

prejud ice the foreig n relat ions int ere sts of the Un ite d St ates a nd the 

inter ests of thousa nds of A me rican n ati on als w ith o ut stan ding cla ims 

ag ains t Cuba and the Pe op le’s Republic of Ch ina . One effect of 

such in terrup tio n would be to release the blocked assets. An othe r 

wo uld be to autho rize tra ns ac tio ns now p rohibited wi thou t rega rd for 

the state of Un ite d States relatio ns with countrie s concern ed or the 

Cu ban im po rts could come into the Un ite d States with ou t rega rd to 

othe r economic issues, and th e relax ati on of tra ns actio n con trols with 

res pec t to North Vietn am would be wi thou t re ga rd to an y con tex t of 

im proved bila teral relatio ns. A s a result it wou ld become very difficult, 

if no t impossible, to ne go tia te satis facto ry clai ms settleme nts , or to 

rea lize othe r U.S . objec tives.

Th e Dep artm en t wishes to stre ss th at thes e are me rely the cu rre nt 

pr og rams un de r section 5 (b ) of the Tra di ng W ith the E nemy A ct and 

the 1950 pr oclam ation o f na tio na l emergency. Th is au th or ity has been 

uti liz ed in the past fo r pr og rams whi ch hav e served th ei r purposes 

and been te rm ina ted , and it m ay be ne cessary ag ain . T he pr esen t int er ­

na tio na l sit ua tio n has the po tential for serious difficulties in in te rna tio na l fiscal and economic matters, pa rti cu la rly in the energ y area, 

which ma y call for measures requ iri ng recourse to th is au thority . 

Th erefo re, t he De pa rtm en t believes it is essential th at section 5( b) of 

the Tra din g W ith the En em y Act be spec ifica lly exe mpted as section 

602 no w provides.

I he Dep artm en t has n ot opposed, and does not oppose, the r epl ace ­

me nt of section 5( b) by othe r pe rm an en t leg islation. We do believe, 

how eve r, th at the re are a nu mbe r o f serio us legal an d policy questions 

in con nection with any such leg islation th at will req uire protracted 

con gressional con sideration, an d we are convinced th at it wou ld be 

hi gh ly im pr ud en t to cast aw ay the au thor ity of section 5( b) wi tho ut 

any ass ura nce of such a replace me nt.

Mr. Ch airm an , at th is po in t I wou ld lik e to make a com men t on 

an othe r au th or ity which I did no t includ e in my pr ep ar ed sta tem ent, 

bu t wh ich is of concern to the Dep artm en t of State , section 215 of th e 

Im m ig ra tio n and Nationa lity Ac t, and the exist ing proclam ati on of 

na tio na l emergency are the only cu rre nt au th or ity fo r requ iri ng 

Am erican citizens to have a va lid pa sspo rt fo r lea ving and en terin g 

th e Uni ted Sta tes . I am advis ed th at in the absence of th is au thor ity 

the I m m ig ra tio n and Nat ur al izatio n Ser vice w ould have a substan tia l 

ad ditio na l ad minist rativ e bu rden of scr een ing persons who claim to 

be Am eri can citize ns but have no pa ssp ort .

Und er present pra ctice, as I un de rst an d it, if an individu al abroa d 

doesn’t have a pa ssp ort, he would ap ply fo r one thro ug h our repr esenta tives abroa d, and some of t he scr een ing would take place on the 

othe r sid e; and th at fa cilit ates the ad minist rativ e bu rden in thes e 

matters .
83

What would happen, here, if this auth ority were not exempted from the effects of this legislation. After a year s time, when the cur­ rent authorities dependent on a national emergency proclamation ex­ pire, we would have the option of declaring a national emergency for the purpose of continuing this authority , or hoping to obtain permanent legislation. Of the two, the latter would seem to be the 

better alternative. t

. . .

So, we would ask the committee to consider whether this additional authority, section 215 of the Immigration and N ationality Act should 

not also be exempted for the reasons th at I have given. To sum up, the Department of State believes that H.R. 3884 pre­ serves essential emergency authorities and eliminates obsolete ones, so the Department has no objection to its enactment, Mr. Chairman.

I will be happ y to try to anwer any questions.

Mr. Flowers. Thank you, Mr. Feldman. Let me sta rt at the end, then. This passport matter is sort of after the fact, as I understand it, it’s not a pa rt of the bill under con­ sideration, there is no exemption; nor was it a pa rt of the bill passed by the Senate last year. So, this is something tha t came up in late r 

discussions.

Air. Feldman. Th at’s right.

Mr. Flowers. Let me just ask you very candidly, how much of a burden would that place? It doesn’t appear to me, on the surface, to be a very grea t burden to be handled by State in the normal consul ar fashion, as other matters of that nature have.

Mr. F eldman. Mr. Chairman, I would like to be equally candid and say I can’t speak of personal knowledge of the extent of the burden. I believe the burden would fall prim arily on the Immigration and Naturalization Service. In the absence of a requirement for a pass­ port—American citizens appearing at the port of entry, or others claiming to be American citizens appearin g at the port of entry, 

would have to document themselves in some way.

Mr. Flowers. This, I think, typifies the basic reason for this sort of legislation. Here is something that is to tally unrelated to any emer­ gency, of securing a passport for someone th at has perhaps been lost in Western Europe, is keyed in to a national emergency declared 

because of our conflict with North Korea. It boggles the mind tha t we have structured activities totally unre­ lated to this m atter, and hopefully we will be able to correct this kind of thing through legislation, or whatever is required. Perhaps the impetus might be th is termination of emergency authority. Well, let me move to the main thru sts of your comments. The state­ ment regarding the People’s Republic of China, and the blocking of assets before 1971, in t ha t regard, what has the cutoff date of 1971 got 

to do with it? That is on page 2 of your statement.

Mr. F eldman. Yes, Mr. Chairman. I would prefer to supplement my testimony with a more precise answer, concerning the specific date. 

[See letter dated Apr. 15, 1975, at p. 88.] It is obvious tha t over the last several years our relations with the Republic of China have been undergoing a change, and we have been moving in the direction of increased contacts of an economic as well as cultural and other character. I am sure the date does correspond 

to an administrative adjustment in that context.
84

Mr. Flowers. This just relates back to our new relationship with 

China, th at is what you mean ?

Mr. Feldman. I am sure it was a step along the way.

Mr. I lowers. AV e still have these assets blocked now, as we did in 

1971.

Mr. F eldman. As I understand the situation, the Treasury D epartment has blocked assets up until May of 1971. Those th at were blocked 

prior to that time remain blocked; and additional assets coming into 

the country have not been blocked since tha t date.

Mr. F lowers. I ’m not sure exactly what assets we are talking about, 

we have always recognized a Government of China, and th at has been 

the Taiwan Government until just recently. I just never got into this 

before, i t appears to me, on the face of it, assets of the Government of 

China prior to 1950 would have remained thus in our official view; is 

this not the case ?

Mr. Feldman. Mr. Chairman, tha t is a very good question. I asked 

the same question, and I am advised th at at some point in the 1950’s 

the Treasury Department actually went through a procedure in which 

individuals were designated as nationals connected with mainland 

China, and these assets were blocked. I f they were not so designated, 

if the relationship was established with the Republic of China, then 

their assets, if they had been blocked, were released, or were not 

blocked, whichever the case may be.

I think we are here talkin g about assets, in many cases, of individuals, or firms with links, sufficient links to the mainland so tha t it was 

thou ght tha t the release of those assets would be for the effective benefit of the authorities in Mainland China.

Mr. F lowers. All right.

The further point tha t I would make, and it is really bordering on 

what we were talking about earlier, relating to, for instance, our 

blocking of any assets of the North Vietnamese to the 1950 Korean 

emergency, when as of 1950, of course, we had no real involvement 

even in tha t country ; and it does signify, I think, the need for this 

type of legislation, that we deal with the emergency on the true basis 

of what is the emergency, rather than structure our system to gear it to 

some emergency declaration tha t relates to something else.

I don’t think you disagree with th at, either.

Mr. Feldman. No, Mr. Chairman.

Mr. F lowers. I have no further questions, does counsel on either 

side—-Mr. Shattuck?

Mr. Shattuck. If I might, Air. Chairman. I am returning to the 

poin t on the Immigration and Nationality Act, the passport requirement. Do you thin k the 1-year period would be sufficient time for 

permanent legislation on this?

Air. F eldman. I t seems to me tha t may be the best option. I would 

wish the opportunity to consult further in more detail, not only with 

the responsible officers in the State Department, but also the Immigration and Naturalization Service.

I agree with the Chairman t ha t this may be a good illustration of 

the kind of legislation th at was intended to be permanent. It has 

proved at least to have some significance, administrative significance, 

or substantive significance tha t is not necessarily connected with an 

emergency declared by the President, in which case a case could be
85

made out to persuade the Congress that the authority should be 

extended. But, I would like to reserve a judgment on that question to provide an answer to the question after fur the r consultation, if that is 

satisfactory.

Mr. Flowers. I ’ll put it this way, I stand ready to be convinced tha t you need an exemption in this a rea; but I ’m no t convinced righ t 

now. Mr. Feldman. I appreciate that, Mr. Chairman. We were asking for the committee to consider this matter, and to give its best jud gment. Mr. Flowers. If the Department is serious about this, give us substantial reasons to give the exemption.

Mr. F eldman. I think t ha t is a very fair request.

Mr. Flowers. Mr. Coffey?

Mr. Coffey. Thank you, Mr. Chairman. Mr. Feldman, when the Treasury Department was before us th eir testimony was quite similar to yours in their concern about, the con­ tinuation of the Trading W ith the Enemy Act. They emphasized th at cases interpreting the Tra din g With the Enemy Act indicate tha t an emergency had to be in effect to continue the validity of blocking, constitutionally. And I wonder whether you would like to comment as to whether you feel this legislation would cover tha t point 

sufficiently. I mean tha t in term inating the powers and authorities tha t are connected to national emergencies tha t are in existence, does the exemption for the Trading With the Enemy Act adequately take care of the problem? Does it really continue an emergency for the Tra ding With the Enemy Act in that case, or does it really say it goes on in existence, or in effect, despite the fact tha t it was terminated? I am wondering how the courts might interpret it.

Mr. Feldman. Mr. Chairman, if I may, I will take the question in two parts. First, we are satisfied tha t the exemption of the Tra ding With the Enemy Act from the provisions of this bill will preserve the auth ority that we now have under the T rading With the Enemy Act, based on the 1950 proclamation, or other proclamations made by the Pres iden t from time to time. This is a very important authority to 

us for all the reasons that I have testified. It does not mean th at we do not recognize the merit of proceeding with permanent legislation in this area, we do recognize the merit. But, there are a number of complexities both of a policy character and a legal character in attem pting to draw up such legislation. We would not like to risk losing it now tha t we have a body of court cases which upheld the exercise of the auth ority under the act and the proclamation; and we don’t believe it would be prudent to change the legal basis for our action with respect to those programs, and to risk new litigation and possibly different results. So, we naturally would have urged a prudent course, and so far the Congress has seen the merit of this, as reflected in this bill. Now, the first pa rt of your question, as to the Treasury testimony raising questions about the intrinsic importance of a proclamation of national emergency for the type of authorities th at are exercised under
the Trading W ith the Enemy Act. Frankly, this is an area of constitutio nal law; I am not the most qualified witness in the executive 

branch to testify on that. T he Treasury has responsibility for administra tion of the program, and Justice the expertise in the constitutional 

area.

However, I think we would all recognize th at we are talking about 

an area which is speculative. I am not persuaded tha t it would be 

impossible to d raft permanent legislation tha t would withstand constitutional challenge; it is that issue that has been raised by the T reasury Department, and it is one of the legal complexities that would 

have to be seriously considered by Congress in draftin g permanent 

legislation. We would have to see what the standards are tha t Congress would wish to provide, how much au thority the President would 

be given under new legislation, considering the very different circumstances and measures th at historically have been engaged under the 

Tra ding with the Enemy Act.

Mr. Shattuck. Tha t would be prospective in force, would it not?

Mr. Feldman. It would not have much value-----

Mr. Shattuck. I mean, it would not be retroactive, it wouldn’t 

cover the present problems.

Mr. Feldman. I think in any event, even if there were permanent 

legislation—and your question, your point is a good one—we would 

wish to have a savings clause that would preserve the present authority 

for the existing programs.

Air. Coffey. Is the kind of permanent legislation you are talking 

about a reality in the near futur e, has legislation like tha t been introduced, or is it even being drafted ?

Air. F eldman. Frankly, I don’t believe that any attempt has been 

made to dra ft such legislation. I think this measure is an impetus 

for such consideration; and if I am not mistaken there are provisions 

in this bill for consideration by the substantive committee within a 

certain time period of these various substantive issues.

A\ e are in favor of th at consideration proceeding, and we would look 

forward, with other executive agencies, to cooperating with the approp riate committee in the dra ftin g exercise. I t is ha rd for me to see 

now whether we could find a better basis for grantin g the President 

the authority tha t we thin k he needs, than the concept of national 

emergency; but it may be possible to do so.

Mr. Coffey. Wh at do you think about a time limit on the exemption 

of the Trading with the Enemy Act ?

Air. F eldman. Our view is tha t the Trading with the Enemy Act is 

such an essential authority with the changing inte rnational scene as we 

have it now, th at we would not wish to see any artificial time limit 

placed in the bill, because it remains to be seen whether the Congress 

will find agreement on a substitute in terms of permanent authority 

which will be as adequate as the Tradin g with the Enemy Act is now.

Th at is a terribly important authority, and the programs we have 

had have been very important in the pa st; and the world situation is 

unde r so many pressures at the moment that it’s really hard to say 

where we might need to turn next.

Air. Coffey. Thank you. Th at is all, Air. Chairman.

Air. F lowers. This is not to embarrass the State Department in 

any way, I wouldn’t want to tell of our recent successes in foreign 

policy under the Trading With the Enemy Act.
87

I don’t think I have any furthe r questions, Mr. Feldman, I thin k 

you adequately covered the thing, and made a good case, along with 

the Treasury Department for the exemption of the Tradin g With the 

Enemy Act; I don't think the committee will have any problem with 

■that. Let me say once again, on the passport matter, if you furnish 

material we will be happy to receive it; and if you wish to elaborate 

on any other answer, we will be happy to receive it.

Mr. Feldman. T hank you very much, Mr. Chairman, I appreciate 

that invitation.

Mr. Flowers. T han k you for coming over.

[The prepared statement of Mr. Feldm an follows:]

Statement of Mark B. F eldman, Deputy Legal Adviser, Department of State

Mr. Chairman, the Department of State appreciates the opportunity to testify on II.R. 3884, a Dill “to terminate certain authorities with respeet to national emergencies still in effect, and to provide for orderly implementation and termi­ nation of future national emergencies.” This bill is very much the same as S. 3957 

passed by the Senate last session. The Department of State believes tha t it is appropriate to reexamine the 

national emergency authorities at this time, to repeal obsolete authorities, and to set criteria for national emergencies which may be declared in the future . H.R. 3884 does this, and at the same time preserves major emergency author­ ities tha t are essential to the conduct of foreign relations. The Department wishes to speak in support of section 002 of II.R. 3884 which preserves essential authorities. The Department of S tate is primarily concerned with section 5(b) of the Trad­ ing with the Enemy Act (50 U.S.C. App. 5(b) and 12 U.S.C. 95a) which pro­ vides the basic legal authority for a number of programs of major foreign policy 

importance. These include: 1. Foreign Assets Control Regulations (31 C.F.R. Part 500) ;

2. Cuban Asset Control, Regulations (31 C.F.R. Part 515) ; and

3. Foreign Funds Control Regulations (31 C.F.R. Part 520). Under these programs, transactions are prohibited which involve persons or property subject to United States jurisdiction and which take place with Cuba, North Viet-Nam, North Korea, and designated nationals of thoge countries, un­ less specifically or generally licensed. In addition, property in which those coun­ tries or their nationals have an interest has been blocked and is under United States Government control. We also are holding assets of the People's Republic of China blocked before May 1971 and assets of certain Eastern Euroi>ean coun­ tries. While the amounts of the blocked assets vary, in some cases it is sub­ stantial, for example possibly in excess of $80 million in the case of the People's 

Republic of China. An interruption of these programs would seriously prejudice the foreign relations interests of the United States and the interests of thousands of American nationals with outstanding claims against Cuba and the People’s Republic of China. One effect of such interruption would he to release the blocked assets. Another would be to authorize transactions now prohibited without regard for the state of United State s relations with countries concerned or tlie underlying 

United States interests served by these programs. Thus for example, Cuban imports could come into the United States without 

regard to other economic issues, and relaxation of transaction controls with respect to North Viet-Nam would be without regard to any context of improved bilateral relations. As a result it would become very difficult, if not impossible, to negotiate satisfactory claim settlements, or to realize other United States 

objectives. The Department stresses tha t these are merely the current programs under section 5(b) of the Trading with the Enemy Act and the 1950 proclamation of national emergency. This authority has been utilized in the past for programs which have served their purposes and been terminated, and it may be neces­ sary again. The present international situation has the potential for serious difficulties in international fiscal and economic matters, particularly energy, which
may call for measures req uiring recourse to this autho rity . Therefore, the Depa rtm ent believes it is essential th at section 5(b ) of the Tra ding with the 

Enemy Act be specifically exempted as section 602 now provides.

The Departm ent of Sta te ha s not opposed, and does not oppose, the replacement of section 5(b ) by oth er perm anent legislation. We do believe th at there are 

a num ber of serious legal and policy questions in connection with any such legislation th at will require pro tracte d Congressional consideratio n and we are 

convinced that it would be highly imprudent to cast away the autho rity of section 5(b) without any assura nce of such a replacement.

To sum up, the Department of State believes th at H.R. 3884 preserves essential emergency autho rities and eliminates obsolete ones, so the Department has 

no objection to its enactment.

I will be happy to try to answer any questions.

Department of State, 

Washington, D.C., April 15,1975. Hon. Walter Flowers,

Chairman, Subcommittee on Administrative Law and Governmental Relations,

Jud icia ry Committee, House of Representatives, Washington, D.C.

Dear Mr. Chairman : During my testimony on April 9, 1975, on H.R. 3884, I

was asked for addition al info rma tion on the May 1971 date given in my prepared 

statem ent as the cut-off for blocking of Chinese assets.

In May 1971 th e Departme nt of State requested the Depar tment of Tre asury 

to terminate blocking of cu rre nt transaction s involving China und er 31 CFR 500.

On May 8, 1971, a Tre asury ord er was issued f or th is purpose, and it is now incorporated in 31 CFR 500.546 (enclo sed). The order preserve s blocking actions 

prior to May 6, 1971.

I hope th at this information answ ers your question.

Sincerely,

Mark B. F eldman,

Act ing Legal Adviser. Enclosure.

§ 500.51i6 Current transactions w ith China and it s nationals authorized.

(a ) Except as provided in parag rap h (b) of this section, all transa ctions with

China or its nation als are hereby licensed.

(b) This section does not a utho rize :

(1) Any transactio n prohibited by §500.201 involving property subject to the 

jurisdiction of the United Sta tes as of May 6,1971 in wThich China or any national 

thereof, at any time on or since December 17, 1950 had any interest whatsoever 

nor any tran sac tion involving any income from such property accruing on or 

af ter May 6,1971.

(21 Any transactio n proh ibited by § 500.201 and excepted from section 500.541 

by subpa ragraphs (c) and (e) thereof.

(3) Any tra nsactio n prohibited by section 500.204.

(4) Any transaction involving an interest of North Korea or North Vietnam or 

nationals thereof.

[36 F.R. 8584, May 8,1971]

Mr. Flowers. Now we have Mr. Scalia from the Justic e Dep artment. Assistant Attorney General. Office of the Legal Counsel. We will 

be delighted to hear from you, sir, fresh from the battles.

TESTIMONY OF ANTONIN SCALIA, ASSISTANT ATTORNEY GENERAL, 

OFFICE OF LEGAL COUNSEL. DEPARTMENT OF JUSTICE

Mr. Scalia. Yes. sir. Blue pin-striped suits seem to be the Executive 

branch uniform for today.

Mr. Flowers. T hat is just fine, we are delighted to have you both 

with us.

Mr. Scalia. Mr. Chairm an, I appreciate your rescheduling this 

testimony, by the way, so th at I did not appear as the first witness. As
89

you know, I am tr yin g to perform the forensic equivalent of the hat 

trick this morning, back-to-back testimony.

Mr. Flowers. If you are as successful as the Washington team was 

the last time, you’ll be all right.

Mr. Scalia. I'm alive. e Mr. Chairman, I have with me Jack Goldklang who is a stall attorney in the Office of Legal Counsel, and has worked on this 

particular legislation for some time.

Mr. Flowers. We have seen him around, and we are glad to have 

him sitting at the table today. . .

Mr. Scalia. The situation we are addressing today has been building for 42 years. It was in March 1933 th at President Roosevelt and Con­ gress both declared the existence of a national emergency, thereby giv­ ing the President special powers under the Emergency Banking Act. Those of you born after 1933 have therefore spent your entire lives liv­ ing under laws whose application has depended upon the continuing 

existence of a national emergency. Since the purpose of such emergency laws is to confer upon the Government extraord inary authority which in normal times it would not have, one must assume tha t undue prolongation of states of emer­ gency has the effect of creating or perpe tuating powers which neither the President nor the Congress would think desirable. At least, tha t is the case if the emergency power legislation is so designed as to confer only those powers which are not necessary in normal times. And it is this last qualification which makes elimination of the situation a more 

difficult task than one might suppose. Over the past 42 years, spanning the terms of 22 Congresses and 7 Presidents, some actions have been taken, and some administrative dispositions have been made, under emergency power provisions, which would have been just as necessary and desirable had no emergency existed. Routine statutory authorization was not sought and was not 

granted only because i t was not needed. This, then, is the central problem which we face in attempting to return to a more rational and orthodox state of law: to eliminate unnecessary and undesirable emergency powers without at the same time upsetting dispositions that are routine and essential portions of our legislative and administrative structure. I think the bill before you does tha t adm irably well, and at the same time establishes a system which will prevent the present state of affairs from recurring. Unlike the other agencies a ppearing before you in these hearings, the Department of Justice has no programs which depend on the existence of a national emergency. I cannot pretend, however, to be a completely disinterested witness. As the Assistant Attorney General in charge of the Office of Legal Counsel, it is one of my functions to pass upon the legality of proposed proclamations and Executive orders before they are submitted for the President's signature. My office must consider the problems presented whenever the President chooses to issue an Executive order invoking or delegating powers dependent upon the existence of a national emergency. Thus, we have been wrestling with the legal intricacies of accumulating emergency powers provisions ever since 1933. Fo r reasons of practicality as well as principle, we would welcome a retu rn to legislative normalcy.

5 2- 21 8— 75 ------ 7
90

This Department strongly supported the effort of the Senate Special

Committee on the Termination of the National Emergency to make a 

systematic study of the problems in this area. In February of 1973, 

then Attorney General Kleindienst. in response to a request from 

Senators Mathias and Church, provided the services of a senior staff 

member of the Office of Legal Counsel to assist the Senate in its study. 

That staff member, by the way, was Mr. Goldklang.

Considerable effort was devoted to reviewing lists of emergency 

statutes, determining how and when they had been used and—believe 

it or not—trying to decide how many national emergencies were still 

in effect. The bill before you, similar to S. 977 which passed the 

Senate at the end of the last Congress, is the product of those labors.

II.R. 3884 would accomplish a number of objectives which the 

Department of Justice enuthiastically supports. Title I would terminate all powers and authorities possessed by the Executive as a result 

of any declaration of national emergency in effect on the date of 

enactment. This provision is the core of the legislation—but, as noted 

above, standing alone it would have the effect of undoing many 

dispositions which are necessary and desirable parts of our system, 

and which the Congress would not wish to repeal. The bill meets this 

problem in two ways: First, those powers and autho rities tha t have 

already been identified as necessary on a continuing basis are exempted 

from termination by section 602. I will have more to say about that 

provision later on.

Second, the termination date for all other powers and authorities 

is set at 1 year from the enactment of the legislation, so tha t agencies 

will have a grace period in which to identify and bring to the attention of the Congress any other provisions which they deem it essential 

to retain. In our view this grace period is absolutely necessary.

We believe tha t we have identified all administrative dispositions 

which have developed since 1933 tha t are dependent upon emergency 

powers and authorities for their continuing validity. B ut anyone who 

has had a pa rt in that massive effort must retain some humble doubt 

tha t several provisions may have been overlooked.

With the stimulus of known termination by a fixed and rapidly approaching date, agencies may be induced to search their own houses 

with a care and urgency that our inquiries could not produce. I have 

no reason to believe tha t anything of importance will tur n up; but 

having waited 42 years, it seems prudent to insure against major error 

bv deferrin g the effective date of your action for 1 year more.

I may say. the State Department’s quite recent discovery of another 

provision which it feels must be excepted—Section 215 of the Immigration and Nationality Act— simply emphasizes this point. I think 

it is prud ent to allow the agencies to have a year with the axe hanging 

over th eir heads, so they will be sure to find everything.

Mr. F lowers. I certainly agree with you on that.

Mr. Scalia. Any emergency declared afte r the date of enactment 

of this legislation would not be terminated by title I, bu t would instead 

fall under the limiting scheme created by title II . Moreover, title I 

would only affect those statutes whose conferral of powers is expressly 

conditioned upon a Presidential declaration of national emergency. 

This is made clear by section 101(b). which defines the phrase “any 

national emergency in effect” to mean only “a general declaration of
91

emergency made by the President pursuant to a statute authorizing 

him to declare a national emergency”

Thus, laws like the Defense Production Act of 1950, which do not 

require a Presidential declaration of emergency for their use. are not 

affected by this title—even though they may be referred to in a lay 

sense as “emergency” statutes. Some confusion may have resulted from 

the fact that both kinds of “emergency” provisions have been the subject of hearings and reports by the Senate special committee. For example, Senate Report No. 93-549, released by the special committee, is 

a compilation both of those statutes available for use only during 

declarations of national emergency, and of other “emergency” statutes 

as well. I want to reemphasize that only the former are covered by this 

proposed legislation, except for certain of the latter tha t are repealed 

by section 601. Title I I of the bill provides, for the first time, explicit authorization 

for the President to make the declaration of national emergency which 

certain statutes require. (I presume that the Chief Executive has inherent constitutional power to proclaim to the citizens his determination tha t there exists a national emergency, but such a proclamation 

would not have the effect of placing any new statutory powers in 

in his hands.) At present this power to declare a national emergency, which has the 

effect of creating new Presidential powers, can be implied with respect. to some statutes—fo r example, those which state that certain laws 

are deemed to be in effect “during any * * * period of national 

emergency declared by the President” (th at is the language of the 

Trading with the Enemy Act 12 U.S.C. 95a). However, no existing 

statu te authorizes the President, in so many words, to declare an 

emergency; and some statutes dependent upon the existence of states 

of emergency do not specifically sav who shall declare them.

The present bill thus effects a desirable clarification of the law. 

When the act fully takes effect, emergency provisions will only be 

implemented by th e President in accordance with the terms of title I I. 

We do not understand the act to supersede existing provisions of law 

which authorize congressional declarations of emergency; its focus is 

only on Presidential declarations.

Title II concerns itself with termination of emergenev powers as 

well as their commencement. This is an important pa rt of the bill, since 

after all it is the failure to terminate accumulated powers that has 

given rise to the present situation in the first place. Under present law, 

which does not contain explicit termination provisions, proposals for 

the use of emergency power often generate discussion as to whether 

existing emergencies have lapsed or grown stale due to passage of time 

and change of circumstances. Section 202 of the present bill will eliminate all uncertainty on tha t point, since it sets forth the prescribed 

means of termination and also requires the continuing existence of a 

state of emergenev to be formally recorded each year.

The present bill provides two methods for termination: A concurrent resolution by Congress, and a proclamation by the President. The 

second is, of course, the traditional method for formally ending emergencies. Let me stress that even though we have bad a continuous state 

of emergency of one type or another since 1933, Presidents have terminated a number of separate emergencies during this period. For ex-
92

ample, in 1952 Presid en t Tr um an t ermina ted emergen cies d eclared by 

Pr esiden t Roosevelt in 1939 an d 1941. Recent in voc atio ns of emergency 

power by the Pr esiden t have relied on only two emergency decla ratio ns : Proclam ation No. 2914 of December 16, 1950, whi ch is the 

proc lamation of emergen cy based on events in Ko rea an d elsewhe re; 

an d Proclam ation Xo. 4074 of Au gust 15, 1971, which is the natio nal 

emergency dec laration ca lling upo n the N ation to streng then t he economic p osition of the United Sta tes.

Te rm ination o f P re side ntially dec lare d emergencies by the Congress, 

provide d fo r in section 20 2(a) (1) is a n innovatio n. Th e con gres sion al 

pro ced ure specified is th at of concurrent resolu tion—t hat is, a res olu ­

tion passed sep ara tel y by eac h House of Con gress an d no t sub mitted 

to th e Presiden t fo r his sign ature.

As th is committee is no do ub t aware, the Ex ecuti ve ha s rep eated ly 

expressed the view th at use of such a device to offset Executiv e powers 

is con sti tut ion ally objectionable. Th is position is g roun ded in art icle I, 

section 7. clauses 2 a nd 3 o f the Co nstitu tion, which prov ide th at eve ry 

bill an d every ord er, resolu tion or vote, to whi ch the concurrence of 

the two Houses of Congress may be necessary, must be pre sen ted to 

the Pr esiden t. Lad ies a nd gen tlem en, t his is an old controversy, and I 

hav e no desire to divert thes e h earin gs into th at m ajor field. I presu me 

th at in enactin g this leg islation the Congres s wou ld wan t its oth er 

provisions to endure even if, by private suit or oth erw ise, the concu rre nt resolution fea ture s hould be stricken down.

1 have one last comment o f a tech nical na ture, w hic h does n ot app ea r 

in my prep ared text, ab out title I I. I think it might be useful to discuss 

with the committee staff the possibility of includ ing —in th e portion 

of section 202(a ) at the bottom of pag e 3, be ginn ing at line 15— 

some reference to Pr esiden tia l ter mina tio ns as well as con gres sion al 

term ination.

Le t me ex plain: Th at po rti on of 20 2( a), begin ning wi th line 15, 

says th at when the Con gress ter mina tes an emergency by concurrent 

resolu tion, the emergen cy ter minates on the da y th at Con gress specifies. M oreover, the t ermination does no t affec t action take n before the 

term ination, action based on an act co mm itte d befor e th e term ina tio n, 

an d so fo rth as provide d in clau ses (A )- (C ).

F or some reason the savin gs clauses do no t ap ply to the second 

man ne r of ter mina tio n, which is cited ju st above, th at is in 202(a ) 

(2 )—th e pre sid ential proc lamation metho d of te rm in at in g an emergency. I am not entirely cle ar why the sav ings clauses shou ldn ’t be 

appli cable to both typ es of termination, a nd w hy t hat p ar ag ra ph only 

refe rs t o cong ressional term inat ion. I t may sim ply have been an oversig ht, but I would lik e to discuss it further wi th t he com mittee staff.

Mr. F lowers. I wou ld th in k t hat perhap s the m at te r ju st rela tes to 

the fact th at the P re side nt w ou ldn’t issue a proclam ati on terminating 

it, and these things were in order.

Mr. Scalia. Th at ma y very well be, but I th in k it bea rs fu rthe r 

disc ussion. W ha t I am wo rri ed abo ut is th at it might be rea d------

Mr. F lowers. lie mi gh t no t know abo ut the pro blem wi th visas and 

passp orts.

Mr. Scalia. Or i t might be read by some—contrary to what I think 

is the intent—to mean tha t a Presidential termination has no power 

to preserve action taken pri or to termination, and so forth. I would 

not like th at implication to r em ain ; I don’t think it’s anybody’s intent.
93

But, whether it is w orth making it more explicit, or not-----

Mr. Flowers. I certainly invite you and your office to study thia further and discuss it with our start' before we mark up the bill.

Mr. Scalia. Fine. Proceeding to title IV, this makes a substantial and desirable change in the effect of a general declaration of national emergency. Under existing law, such a declaration can have the effect of reviving all sorts of slumbering provisions throughout the United States Code, whether or not they are relevant to the emergency at hand. In many cases, these provisions are not self-executing, so that their mere avail­ ability to the President does not bring about unwanted consequences without specific implementing directives. In other cases, however, changes in law automatically take effect during times of national emergency. See, e.g., 37 U.S.C. 202(e), 37 U.S.C. 407(b). Section 401 of the present bill would change all that, by establishing t ha t no provision of the law shall be triggered by a declaration of national emergency unless and until the President speci­ fies tha t provision as one of those under which he or other officers 

will act. The specification may be made either in the declaration of national emergency or in subsequent Executive order. Such a disposition should benefit all concerned. It will enable the Executive to pick and choose provisions tailored to th e emergency at hand; and it will put Congress and the public on notice as to precisely what laws are going to be invoked. I consider this a ma jor desirable change. The system whereby a whole minefield is triggered by a declaration is simply not rational. Title V includes accountability and reporting provisions. As I noted earlier, our Department has no programs dependent on an emer­ gency, so that we would not feel the pinch of this title. Nevertheless, it may be useful to remind you that other agencies have raised conscien­ tious objections to title V as it is now written. The Defense D epart­ ment, has noted tha t 30 days may not be sufficient time to prepare a complete accounting of all expenditures directly attributable, to an emergency declaration. The GSA representative pointed out tha t it may be more informative as well as less onerous to require a narrative description of how emergency powers have been used, rather than a list of figures. Certainly it should be possible to reach a solution whereby Congress receives meaningful inform ation and the executive branch is not subjected to inordinate administrative burdens. Departing again from my prepared text, I have a technical point on title V which I would like to raise. I don’t think it necessarily re­ quires any change in the bill's language, but I would like to express my understanding of what that language now says. The accounting required is an accounting of all significant orders of the President, including Executive orders and proclamations, and all rules and regu­ lations issued by agencies durin g the emergency, or during the war, and issued “pu rsuant to the declaration” of emergency or war. Now, I interpre t the words “pursuant to” means “under special powers th at come in to effect bv reason of such declaration.” Wh at I mean is th is: Let’s say the President proclaims an emergency during an economic crisis. li e may take all sorts of other actions—not. under emergency statutes—to meet the same economic crisis, using his ordi-
94

nar y powers. It is not my understand ing tha t Congress wants each 

such action, taken by the Presiden t or the agencies under routine 

powers, to be sent over. I t is my understanding tha t the purpose of 

this provision is to identify the actions taken under the special 

powers tliat the President wouldn’t have but for the existence of the 

emergency.

Title VI serves a dual function. Section 601 repeals a number of 

obsolete emergency provisions; the administration supports all of 

those repealers. Section 602 is in a sense the obverse of section 601. 

That is, while the latter eliminates certain emergency powers which 

are clearly of no present or futu re utility, section 602 preserves in 

effect those powers and dispositions which, although originally conferred or established under emergency statutes, are clearly a necessary 

and desirable feature of our normal governmental system.

I will not speak to each of the provisions covered by section 602, 

hut leave tha t to the agencies whose programs they affect. As you 

have no doubt observed, they tend to be rather mundane examples 

of the day-to-day functions of Government.

What I do wish to support with the utmost strength, however, is 

the necessity for a provision such as section 602, whatever specific 

items you ultimately choose to include within it. As I noted at the 

outset of my testimony, the core of the problem -with emergency legislation is the fact tha t much which is authorized and much which 

has been done under it is really not of merely an emergency nature. 

Simply to abolish all emergency powers and dispositions on a specified 

date is not to solve, this problem but to ignore it. The greatest part of 

the effort, which the executive and legislative branches have devoted 

to this bill over the past several years has been directed toward identify ing those powers and dispositions which should be preserved while 

the rest are abandoned.

It is our hope th at within a short time those provisions of law can 

be converted from the emergency portions of the code in which they 

now appear to standard, nonemergency sections. Until tha t is 

achieved, however, the technical conditions which enable them to 

remain effective must be preserved. This is achieved in section 602. 

by preserving the effect of previously issued declarations of national 

emergency only with respect to these specified provisions.

Mr. Chairman. T would like to conclude my testimony bv renewing 

my endorsement of the purpose and effect of this proposed legislation. 

It enables the elimination of a confusing and irrational state of affairs 

which has long existed and constantly worsened; and it provides 

assurance against the reappearance of such a state of affairs in the 

future.

I will be happy to respond to any questions you or the members of 

tl<o committee mav have.

Mr. F lowers. Well. I am not sure I have any questions because it 

is such an excellent, statement, and I mean tha t sincerely, this is an 

outstanding overview of the whole matter. You start out by saying 

you don’t have any problems in Justice, but here is the way it looks 

from everybody else’s viewpoint, and tha t is very helpful to me, and 

I think T probably speak for the rest of the subcommittee.

This kind of cooperation that Justice has shown with the Senate 

special committee and here with us is the kind of way Government 

ought to work; and I commend you people in your part in this.
95

Mr. Scalia. Thank you, Mr. Chairman.

Mr. F lowers. You are not drag ging your feet, but you jumped in to it tooth and toenail, so to speak, and tried to work toward a common solution here; and I think we pretty much got it because of the very good cooperative effort tha t has been shown. I have no questions, you have answered them all in advance, so to speak. I imagine the gentlelady from Texas might have a few choice 

ones for you.

Ms. J ordan. Thank you, Mr. Chairman. T apologize for missing the earlier pa rt of your testimony, b ut cer­ tainly agree with the chairman that your statement was excellent, tha t which I heard, and is very helpful. Are you familiar with some of the objections and reservations which have been raised by other departm ents to this legislation?

Mr. Scalia. Most of those, AIs. Jordan , relate to section 602—that is, what ought and ough t not to be included in as far as I am con­ cerned, that is not my battle. It seems to me, it is up to the affected de­ partments to persuade you that they need those powers or don’t need them. I am not seeking to argue on th at po int; they are more fam iliar with those problems than I am.

Ms. J ordan. As a matter of administration of the departments or agencies of the Government, would you make the assertion that the use of emergency powers for the day-to-day functioning of a specific agency or departm ent of Government is an unwise process ?

Mr. Scalia. Yes, of course, and that is why we support this legisla­ tion. Those powers which society really no longer views as emergency powers should not be called that; it distorts our whole process to use language in tha t fashion. It debases the currency, because there are some powers tha t are emergency, and they ought to have the kind of dignity and to be accorded the kind of respect by the courts which they deserve. I think we have to be careful not to slap tha t label on something th at doesn’t merit it. That doesn’t mean you should eliminate everything tha t is now in emergency powers. It seems to me you have to separate out what is emergency, and what is not emergency.

Ms. J ordan. And emergency power should not be the tool for trying to manage and administer an agency or department of Government from day to day. is what I hear you say.

Mr. Scalia. That’s exactly right. The situation is frankly, I think, more embarrassing and undesirable to the President than it is to the Congress. It is really the President who is constrained to take action under the so-called emergency statutes which he knows and the Con­ gress recognizes is simply normal day-to-day action.

Ms. J ordan. Would it be your judgment tha t in this legislation we have, as best we could, in proper language, protected against any invasion of vested righ ts of persons which may have matured under 

th e exercise of emergency powers ?

Mr. Scalia. I thin k so. There are savings clauses in three separate places in the legislation, which shows a concern of the draftsman for tha t p artic ular problem. I must add. however, that any savings clause is a shot in the dar k until the courts construe it. It is v irtually im­ possible to dra ft such a clause with such specificity that one can know exactly how it is going to work out. B ut to the extent we can, I th ink this legislation does preserve the vested interests.
96

Ms. J ordan. You see, the caveat that has been presented to this 

committee is tha t the effect of this legislation on the rights of members of the military who are missing in action would somehow be 

vitiated by this legislation. Th at their rights would not be protected 

because they were serving unde r emergency powers, and if they were 

terminated and subsequently discovered, tha t then would be a vitiation 

of whatever matured rights, pension rights they would have.

I tend to disagree with that, but I would like to hear what you 

have to say.

Mr. Scalia. It seems to me that the factual situation you described 

is directly covered by the language in section 1 01(a)(3 ) which says 

that the termination which the act effects shall not affect “any rights 

or duties that matured * * * prior to such date.”

It seems to me th at would cover it, and if there is any doubt about 

it, the legislative history you and I just made ought to resolve it.

Ms. J ordan. Well, I certainly agree with your assessment, I think 

that is exactly where th at situation is covered; and I cannot understand why people disagree with that.

Mr. Scalia. I can't myself.

Ms. J ordan. Thank you very much. Xo furthe r questions, Mr. 

Chairman.

Mr. F lowers. Mr. Moorhead?

Mr. Moorhead. When a reference is made to persons missing in action, it causes people to be concerned that this legislation may declare 

those soldiers missing in action, dead prematurely; isn’t that, it ?

Mr. Scalia. Tha t puts the matter in a little different factual context. I frankly am not familiar with the particular problem that you 

are concerned about.

Mr. Moorhead. That is where the situation that I have heard of in 

connection with that has come up. There is a question as to whether 

they would be presumed living, or dead. Under the emergency powers 

their presumption of living has been continued, and their rights, their 

pay checks, and so forth kept coming as long as they were presumed 

alive.

I don t mean to bring you into that, but that is what the problem is.

Mr. Scalia. It seems to me, nevertheless, that if the right matured 

under tha t provision, if he was entitled to payments under that 

provision, 101(a)(3 ) would be relevant. I would be happy to look 

into tha t and then supplement mv testimony.

Mr. Moorhead. As I understand it. your Department came up with 

the language used in 101(a), is that correct?

Air. Scalia. Xo-----

Mr. Moorhead. Xot outri ght termination of emergency powers?

Air. Scalia. It was very much a joint effort. I really couldn’t tell 

you what words in this that I or my staff suggested, and what words 

were suggested by the draftsmen from the House or Senate that might 

have been working on the thing.

Air. AIoortiead. Could you explain why you happened to go in this 

direction, rath er than an outrigh t termination of the emergency 

powers?

Air. Scalia. You mean outright termination of the emergencies instead of termination of the emergency powers as provided in section 101 ?

Air. AIooriiead. T hat’s right.
97

Mr. Scalia. I think there are two reasons, one practical, and one theoretical. The theoretical is presumably less important. As I indi­ cated earlier in my testimony, I ’m not entirely sure tha t when the President chooses to proclaim an emergency and tells the people, “People, there is an emergency,” that Congress has any powers to eliminate tha t statement, that is, to put it back in his mouth. It seems to me what the Congress has the power to do is to say, “You can say as much about emergency as you want, hut it will have no effect on your powers.” Tha t is really what the Congress has authority to do and 

wants to do in this legislation. If the President wants to tell the citizens there is an emergency, he can. You can contradict him, but you can’t revoke his statement in any 

sense.

Mr. F lowers. Th at’s th e way candidates get to be President, as a 

matter of fact.

Mr. Scalia. Right. But in any case, as a theoretical m atter, I thin k 

this approach is cleaner and more accurate. Now, the practical point involved is this one: As I indicated in my testimony, 602 is really an important provision. The only way I can be certain tha t those powers preserved in 602 will not be washed out by this legislation is to continue the conditions necessary for the ir existence. One of these conditions is the continuation of a Presidential proclamation, only for the purposes of those powers, and for the p urpose of no other ones. I would worry about a provision that would say the Presidential proclamation is revoked, but nevertheless somehow these powers con­ tinue. I ’m not sure that that would work.

Mr. Moorhead. Going back to the declaration of the emergency, that hill seems to presume that only the President could declare a national emergency. Yet, there are a number of laws, as I understand, tha t speak of an emergency declared by Congress or the President.

Mr. Scalia. I don’t presume that only the President can. In fact, I indicate in my testimony that I understand the bill not to affect con­ gressional power to declare an emergency.

Mr. Moorhead. Well, this bill seems to be directed only at Presi­ dential emergencies, though. If you read it through you get the idea that only the President has tha t authority.

Mr. Scalia. I thin k that is a fair statement. If one had no knowledge of the law and history of this th ing, and just read the bill, one might say that. I ’m not sure what difference tha t makes.

Mr. Moorhead. Well, if Congress can declare an emergency, shouldn't we in some way incorporate that in this legislation?

Mr. Scalia. I suppose it’s more—let me put it this way: It ’s more im­ portant that you handle Presidentially declared emergencies because the ones you declare yourself are always under your control. You can accommodate a change in the facts as easily as you want. Now, it might he a good idea. I suppose, if you think tha t Presi­ dential declarations should be reviewed every 6 months, to require con­ gressional declarations to be reviewed every 6 months as well. I have been puzzled by the absence of parity between those two, but I hesitate to press it because it seems to be th at’s your bailiwick, and not ours.

Mr. Moorhead. Well, there is cooperation there between the two bodies, if Congress is involved a lot, the President usually signs it.

Mr. Flowers. Will the gentlemen yield?
98

Mr. Moorhead. Yes.

Mr. Flowers. Do we have congressionally declared emergencies on 

the record ? I know of none.

Mr. Scalia. The 1933 emergency has never been •‘undeclared,*’ and 

that was a congressionally declared emergency.

As I say. we have not acted under that in recent years.

Mr. Shattuck. Well, the 1933 emergency was congressionally approved, wasn't it ? The President declared it, and they acted some days 

late r agreed.

Mr. Scalia. The President declared it first, but I took the congressional action to be more than just an approval of it, I ’ll check on that.

Mr. F lowers. If the gentleman will yield further. <

I really had not thought about the point you are making, and I don't 

have a judgment at this point. B ut in titles IV and V, for instance, we 

talk about “when the President declares a national emergency, or the 

Congress declares war.” " *

Mr. Scalia. Th at’s correct.

Mr. I lowers. There is no provision for Congress to declare any 

national emergency. It might be well to at least take note of the fact 

that there is power in the Congress as well, as the gentleman is suggesting, to declare an emergency. And if the bill is to be entirely comprehensive, it ought to at least take note of that at some point within it.

I think you raised a good point.

Mr. Scalia. I think tha t m ight be a good idea, Mr. Chairman. The 

reason I put the statement in my testimony, concerning the fact that 

this legislation does not affect congressional power to declare an 

emergency, is because I did not want it to appear in the legislative 

history that the Executive interprete d this as a denial of any such 

power; we don’t.

Mr. Moorhead. Going to another point, we had Senator Church and 

Senator Mathias before the committee sometime ago, and the question 

came up about either the President or the Congress being able to 

declare an emergency, or to terminate it. And they thought there might 

be the possibility of an impasse in tha t particular area. Do you think 

that might cause us some problems in the future?

Mr. Scalia. No; absolutely not. Let’s not go into the question of the 

constitutionalitv of the concurrent resolution device, But assuming 

that device is effective, it would clearly terminate the emergency; and 

if it is not effective, it would not terminate the emergency. The answer •

is going to be clear, anyway.

Excuse me, I don’t mean it will terminate the emergency, it will 

terminate the emergency powers. Now, you may be left in a ‘situation 

of impasse where the Congress passes its concurrent resolution which >

is held effective, let us presume, and the emergency powers are terminated; but the President is still going around the country saying,

••There is still a national emergency.” In mv view he is entitled to 

that, if not under article II of the Constitution then under the first 

amendment.

Mr. Moorhead. It just won’t have any effect.

Mr. Scalia. I t just won’t have any "effect. That’s the only kind of 

inconsistency I can see: and that doesn’t seem to lie the kind of inconsistency tha t you should have to be worried about.
99

Mr. Moorhead. In section 501,1 guess it is, where we discuss the total 

expenditures language-----

Mr. Scalia. Yes, sir.

Mr. Moorhead, [continuing]. Is t ha t a potential loophole, don t we 

need more defined breakdowns of what is being done in connection 

with the national emergency ?

Mr. Scalia. Well, as I suggested in my testimony, I ’m not sure that a budget-type listing of expenditures would be as useful to you as a narrative description of what actions are taken. I suppose what you are concerned about it not the dollars, but rath er the m anner in which the President is using this extra ordinary power you accorded him. I ’m not sure that asking for dollar figures is the most sensible way. As the GSA testimony suggested, some narrative description may be 

better. But, I don’t see that there is any loophole here. I honestly think that vou will get from this all of the information you want about significant Executive exercise of emergency powers. Certainly, if I were advising the White House or any of the agencies on these on these matters, if this legislation were passed in its present form, I can't conceive how I could advise leaving out any significant emergency action taken.

Mr. Moorhead. Now, under section 601 we exempted certain agen­ cies, and so forth, repealed certain laws, rather, (’an you tell me why they are being specifically repealed, each one of them ?

Mr. Scalia. Those are not general emergency legislation, but rather specific statutes tha t were passed to give particu lar powers in pa r­ ticular circumstances; they are all obsolete. As far as I know there is nobody, either in the executive branch or in the Congress, who thinks they are any more needed, and if that is the case, they ought 

wel 1 to be off the books.

Mr. Moorhead. Now, the next question I have pertains to the Beady Reserves; I am sure many of ns have served in that organization at one time or another. They are listed as one of the exceptions, and 1 unde r­ stand t hat the W hite House suggested th at they be left out. Can you tell me of any particu lar reason why the Beady Reserves should be 

exempted ?

Mr. Scalia. As I indicated in my testimony. Mr. Moorhead, I am not an expert on the need, or lack of need, for each of the exemp­ tions under 602. The effect of this, of taking out the Beady Reserve, would, of course, be tha t the Reserve would still be available in the future, when a war or national emergency is declared, but would not be available right now. As I understand it. that doesn't matter, be­ cause the Ready Reserve is not being used righ t now. My impression is also that the White House suggestion originated with the Department of Defense.

Mr. Moorhead. It has not been used to any extent since Korea.

Mr. Scalia. I believe that's right. Th at’s why the Department doesn’t think it's a necessary power, except in emergencies. The pu r­ pose of 602 is only to save those powers which we want to use in a nonemergency: and we don’t want to use the Ready Reserve except in war or a national emergency.

Mr. Moorhead. What do you think about placing a time limit on those statutes that are exempted from coverage of national 

emergencies ?
100

Mr. Scalia. I do not thin k tha t would be a good idea, simply because one just cannot predict how long it will take Congress to give 

the matter careful consideration. Now, there are provisions in the bill 

for Congress to do tha t—in 602(b), tha t which provides each committee having jurisdiction shall proceed to consider permanent legislation. But unless you are sure that consideration will be given, and 

that Congress is going to have the chance to pass on such legislation,

I thin k it would be irresponsible to establish a fixed date on which 

when these powers will disappear.

Mr. Moorhead. Thank you. And I want to thank you for your 

thorough coverage, it has been very helpful.

Mr. Scalia. Thank you. Mr. Moorhead. *

Mr. F lowers. Mr. Mazzoli ?

Mr. Mazzoli. Thank you, Mr. Chairman.

T would like to join in the congratulations on your good statement, it 

gives a fairly brief but complete statement on the law, and some concerns you have about it.

On page 6 of your statement, Mr. Scalia, you mention tha t “no existing statu te authorizes the President, in so many words, to declare 

an emergency,” and I was just curious, would tha t include the War 

Powers Act as well? Does tha t not set up a situation where the P resident can declare an emergency, as a matter of fact, subject to recall?

This is not, perhaps, a profound point to this bill.

Mr. Scalia. I will check tha t, sir. I don’t have it here w ith me. My 

statement obviously would include that, and I thin k it ’s accurate.

Mr. Mazzoli. I was just curious, and I wondered whether in studying the war powers, whether you found any conflict, or potential confusion between tha t bill and th e arrangement on how the Congress can 

oversee, in effect, a Presidential declaration of emergency, and this 

is where we try to expunge the record largely of emergency related 

statutes. And if you could then add to your perhaps letter or statement whether or not you see any conflict or any kind of confusion that 

might arise from that.

Mr. Scalia. I will. O f course, I am not even sure whether tha t act 

relates to Presidential declaration of emergency, or only to declaration 

of w ar.

Mr. Mazzoli. It could well be. I thought we had some words to the 

effect when he or she perceives there would be some kind of a situation 

that would cause American nationals, or American property to be in 4

some jeopardy, that action could be taken and deployment of troops, 

that kind of thing.

I was just curious because this and the war powers sort of deal with 

the whole situation of emergency and actions which can be taken con- >

gressional prerogatives.

So, I would like to see if you think there is any essential conflict here, 

and how to reconcile differences.

Mr. Scalia. I will be happy to.

Mr. Mazzoli. I was also interested in what you mentioned about 

there having to be some parity, perhaps, or at least this committee 

ought to give some attention to whether or not there should be a parity 

in the savings clauses—on page 4—relating to Presidential “undeclaration.” or whatever word they would employ for undeclaring an 

emergency.
101

In your judgment tha t would make the bill a better bill?

Mr. Scalia. Well, Mr. Mazzoli, 1 wanted to sort of reserve my rights on it. I am not sure why i t’s worded the way it is. I would like to talk to the people who were responsible for getting it the way it is. Maybe there is a reason behind it. I’m not aware of any, and if there is not any. it doesn’t seem to be very sensible.

Mr. Mazzoli. And the same point then applies to the congressional declaration of emergency. On page 9 you poin t out the fact t ha t we might want to consider th at ; but you don’t take any position on it.

Air. Scalia. R ight, I ’m not pressing that. I acknowledge, though, tha t it seems somewhat anomalous.

Air. AIazzoli. Let me go back to what you said earlier for a moment and perhaps clear me up. You indicated the President might well shout “emergency,” and we pass a concurrent resolution which says there is no emergency; and then those things which he has pointed out under which we would operate in the emergency state expire; is tha t what you are saying?

Air. Scalia. That’s right. The difference between his saying there is, and your saying there isn’t, is tha t your saying there isn’t has some effect, and his saying there is does not, except-----

Air. AIazzoli. Politically.

Air. Scalia. That’s right.

Air. AIazzoli. But as far as legally, what you are saying, his con­ tinuing declaration, or continuing assertion that there is an emer­ gency would have no legal effect because all the t rigger devices would have been cleared away by the concurrent resolution.

Air. Scalia. That’s correct.

Air. Mazzoli. Let me just ask one last question about the concurrent resolution. You indicated tha t there is apparently some longstanding debate whether a concurrent resolution has some binding effect on Executive action. Is there anything that your Department has ever done in researching that question that might be of help to us?

Air. Scalia. Sir, back through the years, I don’t know how many memorandms we have on this issue. I t is one of the historical contro­ versies between the two branches. There are instances when the P res i­ dent vetoed legislation because it contained provision for a concurrent resolution; there are instances when the Congress, the constitutional objection being called to its attention, deleted a current resolution provision in proposed legislation; and there are instances when the President said. “I ’m signing this law. but I don’t like the concurrent resolution feature, and I don’t think it’s any good.” We have always managed to live, somehow or other, despite this par­ ticu lar disagreement; and I would not like to see this disagreement cause this legislation to fall upon the rocks.

Air. AIazzoli. Thank you again for your good statement.

Air. Scalia. Thank you, sir.

Als. J ordan. Wo uldn’t you like to see tha t cleared up, whether we can do congressional action, congressional business by concurrent reso­ lution, to circumvent Presidential action? I know that it is not anything which would hold up this legislation, but it would be well if this could be clarified, don’t you think?

Air. Scalia. Yes, ma’am, I certainly do.

Als. J ordan. And I don’t know how we are going to do that.
102

Mr. Mazzoli. I f I could just add one point to what the gentlelady 

said. If I'm not mistaken, I think the War Powers Act deals with 

concurrent resolutions.

Mr. F lowers. And impoundments.

Mr. Scalia. Impoundment legislation, and I believe the Education 

Act Amendments adopted in the last session.

Mr. Flowers. Well, who knows, when the Supreme Court gets 

through with something noncontroversial, maybe they will tur n to 

this. [Laughter.]

Mr. Flowers. I have no further questions. Again, thank you very 

much.

Mr. Scalia. Thank you very much, Mr. Chairman.

Mr. F lowers. You have been very, very helpful.

Mr. Scalia. It has been a pleasure to work with the Congress on this 

legislation.

Mr. F lowers. You have been torn between two subcommittees this 

morning, and we are delighted t hat you were able to come.

Mr. Scalia. I ’m glad yours was the last.

Mr. Flowers. Thank you.

[The prepared statement of Mr. Scalia follows:]

Sta te m ent of A n to n in Sca li a, A s sis t a n t Att or ne y Gen er al, Offic e of L egal

Co un sel

Mr. Chairma n and Members of the Subcommittee: The situ atio n we are addressing today lias been building for 42 ye ars. It was in March 1933 th at Pre sident Roosevelt and Congress both declared the existence of a nation al emergency, 

thereby giving the President special powers under the Emergency Banking Act. 

Those of you born after that time have spent your entire lives living under laws 

whose application lias depended upon the contin uing existence of an official sta te 

of emergency.

Since the purpose of sucli emergency laws is to confer upon the Government 

extraord ina ry autho rity which in norm al times it would not have, one must 

assume that undu e prolongation of states of emergency lias the effect of c reating 

or perpetuating powers which neither the Pre sident nor th e Congress would think 

desirable. At least, th at is the case if the emergency power legislation is so designed as to confer only those powers which are not necessary in norm al times. 

It is this last qualification which makes elim ination of the situation a more difficult task tha n one migh t suppose.

Over the past 42 yea rs, spanning tlie term s of 22 Congresses and 7 P residents, 

some actions have been taken, and some adm inistrative dispositions have been 

made, under emergency power provisions, whicli would have been ju st as necessary and desirable had no emergency existed. Routine sta tut ory authorization 

was not sought and granted ony because it was not needed. This, then, is the 

cen tral problem which we face in attem pting to return to a more ration al and 

orthodox sta te of la w : to eliminate unnecessary and undesira ble emergency 

powers without at tlie same time upsetti ng dispositions th at are routine anil 

essential portions of our legislative and adm inistrative structure . I think the bill 

before you does this admirably well, and at the same time establishes a system 

whicli will prev ent tlie present sta te of affairs from recu rring .

Unlike the oth er agencies appe aring before you in these hearings, the Department of Jus tice has no programs which depend on the existence of a nation al 

emergency. I cannot pretend, however, to be a completely disinterested witness. 

As tlie Assistant Attorney General in charge of the Office of Legal Counsel, it is 

one of my func tions to pass upon the legality of proposed proclamations and 

Executive orders before they are submitted for the Pre sid ent’s sign ature. My 

office must consider the problems presente d whenever the President chooses to 

issue an Executive order invoking or delegatin g powers dependent upon the 

existence of a national emergency. Thus, we have been wrestlin g with the legal 

intrica cies of accumulating emergency power provisions ever since 1933. For
103

re as ons of pra cti cali ty as we ll as pr in cipl e, we wou ld we lco me a re tu rn to legi sla ti ve no rm alcy . . , T hi s D ep ar tm en t st ro ng ly su pport ed t he ef fo rt of t he Sen at e Sp ec ial Com mitt ee on th e T er m in at io n of th e N ational Em erge nc y to m ak e a sy st em at ic st udy of th e prob lems in th is ar ea. In F ebru ary 1973, A tto rn ey G en er al K le in di en st , in re sp on se to a re qu es t from S en at ors M at hi as and Chu rc h, pr ov id ed th e se rv ices of a se ni or st af f mem be r of th e Office of Le ga l Cou nsel to ass is t th e Sen at e in it s st ud y. Con side ra ble ef fo rt w as de vo ted to revi ew in g list s of em erge nc y sta tu te s, de te rm in in g how an d whe n th ey had been us ed and—believe it or no t—tr yin g to 

de cide how man y nati o n al em er ge nc ies wer e sti ll in eff ect. The bill be fore you, si m il ar to S. 977 wh ich pas se d th e Sen at e a t th e en d of th e la st Co ng res s, is th e 

pro duct of thos e labo rs. H .lt. 3884 wo uld ac co mplish a nu m be r of ob ject ives which th e D epar tm en t of Ju sti ce enth usi as tica lly su pp orts. T itle I wou ld te rm in ate al l po wer s an d au th o ri ­ ties po ssessed by th e Exec ut iv e as a re su lt of an y dec la ra tion of nati onal em er ­ gency in eff ect on th e date of en ac tm en t. Thi s pr ov isio n is th e co re of th e le gis la ­ tion —bu t, as no ted above, st andin g alone i t wou ld ha ve the effect of un do ing m an y di sp os itio ns which are a ne ce ss ar y an d des irab le p a rt of our sy stem , an d which th e Con gress wo uld no t wish to repe al . Th e bill m ee ts th is prob lem in tw o w a y s : F ir st , th os e po wers an d au th o ri ti es th a t ha ve a lr ea dy been i de nt ified as n ec es sa ry on a co nt in ui ng ba sis are ex em pt ed from te rm in ati on by se ction 602 of th e bill. (I will ha ve mor e to say about th a t prov ision la te r on .) Second, th e te rm in at io n date fo r al l oth er po wers an d au th o ri ti es is se t a t one year from th e en ac tm en t of th e le gi slat io n, so th a t ag en ci es will ha ve a gra ce pe riod in which to id en tify and br in g to th e att enti on of th e Co ng ress an y oth er pr ov isio ns which they deem it es se ntial to re ta in . In our vie w, th is gr ac e pe riod is ab so lu te ly ne ce ss ary. We be lie ve th a t we ha ve id en tif ied all adm in is tr ati ve di sp os itio ns wh ich ha ve de ve l­ op ed sinc e 1933 th a t are de pe nden t upon em erge nc y po wers an d au th o ri ti es fo r th eir co nt in ui ng va lidi ty . B ut an yo ne wh o has had a p a rt in th a t m as sive ef fo rt m us t re ta in som e do ub t th a t se ver al pr ov isio ns m ay ha ve be en overl oo ked. W ith th e st im ulu s of kn ow n te rm in ati on by a fixed an d ra pid ly ap pro ac hin g dat e, ag en cies may be indu ce d to se ar ch th e ir own ho us es w ith a car e an d ur ge nc y th a t our in quir ie s could no t pr od uc e. I ha ve no re as on to be lie ve th a t an yth in g of im por ta nc e wi ll tu rn u p ; but hav in g w ai te d 42 ye ar s, it seem s pru den t to in su re 

again st—m aj or err o r by defe rr in g th e effecti ve d ate of your ac tion fo r one y ear 

mo re. An y em erge nc y de cl ar ed a ft e r th e dat e of en ac tm en t of th is legi slat io n wou ld no t be te rm in ate d by T it le I, but wo uld in st ead fa ll und er th e lim itin g sch em e cre at ed by Title II . Mo reov er, T it le I wo uld only af fe ct thos e sta tu te s wh ose con- fe ra l of po wers is ex pr es sly co nd iti on ed up on a P re si denti al dec la ra tion of na­ tiona l em ergency. This is m ad e cle ar by Se ction 101(b ), whic h def ine s “any na­ ti onal em erge nc y in effect’’ to mea n only “a gen er al decla ra tion of em erge nc y m ad e by th e P re si dent p u rs u an t to a sta tu te a uth ori zin g him to d ec la re a nati onal em er ge nc y.” Th us , law s like th e Defen se Pro du ct io n Act of 1950, which do no t re quir e a P re si den tial decla ra ti on of em erge nc y fo r th e ir use, are not affecte d 

by th is ti tl e—ev en th ou gh they may be re fe rr ed to in a lay se ns e as “emerge nc y” st atu te s. Some co nfus ion may hav e re su lted from th e fa ct th a t both ki nd s of “e mer ge nc y” pr ov isions hav e be en th e su bj ec t of hea ri ngs an d re port s by th e Sen at e Sp ec ial Co mmittee . F or ex am ple, Sen at e R ep ort No. 93-549 , re le as ed by th e Sp ec ial Co mmittee , is a co m pi lation bo th of th os e sta tu te s av ai la ble fo r us e on ly duri ng d ec la ra tions o f n ati onal em erge nc y, an d of o th er “ em er ge nc y” sta tu te s as we ll. I reem ph as iz e th a t on ly th e fo rm er are co ve red by th is pr op os ed le gi sl a­ tio n. ex ce pt fo r cert ain of th e la tt e r th a t are re pe al ed by se ction 601. T it le II of th e bill prov id es , fo r th e first tim e, ex plici t auth ori zati on fo r (lie P re si dent to mak e th e dec la ra ti on of nat io nal em erge nc y which cert ain sta tu te s re qu ire. (I pr es um e th a t th e Chi ef Exe cu tive h as in here nt co nst it uti onal po wer to pr oc la im to th e ci tize ns his det er m in at io n th a t th ere exis ts a nati onal em er ­ gency— but such a pr ocl am at io n wo uld no t hav e th e effect of pl ac in g an y ne w sta tu to ry po wer s in hi s han ds. ) At pre se nt th is po w er ca n be im plied w ith re ­ sp ec t to som e st atu te s— fo r ex am pl e, th os e whi ch sta te th a t cert ain la w s are deem ed to be in eff ect “d uri ng an y * * * pe riod of nati onal em erge nc y dec la re d by th e P re si dent.” 12 U.S .C. 95a. How ev er, no ex is ti ng sta tu te au th ori zes th e Pre si den t, in so man y words , to de cl ar e an em er gen cy : an d some st atu te s de ­ pe nd en t up on th e ex is te nc e of st ate s of em erge nc y do not sp ec ifi ca lly sa y wh o sh al l de cl ar e the m. The bi ll th u s effects a des ir ab le cl ar if ic at io n of th e luw .
104

When the Act fully takes effect, emergency provisions will only be implemented by the Pre sident in accordance with the terms of Title II. We do not understand the Act to supersede existing provisions of law which authorize congressional dec laratio ns of emergency ; its focus is only on presidential decla rations. Title II concerns itse lf with termin atio n of emergency powers as well as their commencement. This is an important pa rt of the bill, since it is the failure to terminate accumulated powers th at has given rise to the present situation. Under present law, which does not con tain explicit term ination provisions, proposals for the use of emergency power often gene rate discussion as to whether existing emergencies have lapsed or grown stale due to passage of time and change of c ir­ cumstances. Section 202 of the present bill will elim inate all unc erta inty on tha t point, since it sets forth the presc ribed means of term ination and also requires the continuing existence of a sta te of emergency to be form ally recorded each yea r.

The present bill provides two methods for termin atio n : a concurrent resolution by Congress, and a proclama tion by the President. The second is. of course, the tra dit ion al method for formally ending emergencies. Let me stress that even though we have had a contin uous sta te of emergency since 1933, Presidents have terminated a number of sep arate emergencies during this period. For example, in 1952 Preside nt Truman terminated emergencies declared by Pre sident Roose­ velt in 1939 and 1941. See Proc lamation No. 2974. Recent invocations of emergency jxnver by the Preside nt have relied on only two emergency decla ratio ns: Proc lamation No. 2914 of December 16, 1950, and Proc lamation No. 4074 of August 15. 1971. See e.ff., E.O. 11S10 of September 30, 1974, Continuing the Regu­ lation of Exports.

Term ination of presiden tially declared emergencies by the Congress, provided for in section 202(a) (1), is an innovation. The congressional procedure specified is th at of concurrent resolution—that is, a resolution passed separately by each House of Congress and not submitted to the President for his signature. As this Committee is no doubt aware, the Executive has repeatedly expressed the view that use of such a device to offset Executive powers is con stitutionally objection­ able. This position is grounded in Article I, section 7, clauses 2 and 3 of the Con­ stitu tion , which provide th at every bill and every order, resolution or vote, to which the concurrence of the two Houses of Congress may be necessary, must be presented to the President. This is an okl controversy, and I have no desire to divert these hearings into th at ma jor field. I presum e th at in enacting this leg­ islation the Congress would want its other provisions to endure even if, by pri­ vate suit or otherwise, the concurrent resolution featu re is stricken down. Title IV makes a sub stantial and desirable change in the effect of a general dec laration of national emergency. Under existing law, such a declaration can have the effect, of reviving all sor ts of slumbering provisions throughout the T'nited Sta tes Code, whether o r not they are rele vant to the emergency at hand. In many cases, the provisions are not self-executing, so that their mere ava il­ ability does not bring about unw anted consequences without specific implement­ ing directives. In other cases, however, changes in law auto matica lly take effect during times of natio nal emergency. See, e.ff., 37 U.S.C. 2 02(e), 37 U.S.C. 407(b). Section 401 of the present bill would change all that, by esta blishing th at no provision of law shall be triggere d by a declaration of n atio nal emergency unless and until the Preside nt specifies th at provision as one of those und er which he or other officers will act. The specification may be made either in the declaration of nation al emergency or in subseque nt Executive orders. Such a disposition should benefit all concerned. It will enable the Exec utive to pick and choose provisions tail ored to the emergency at han d: and it will put Congress and the public on notice as to precisely wh at laws are going to be invoked.

Title V inclu des acco untability and repo rting provisions. As I noted earlier, our Department has no programs depe nden t on an emergency, so t ha t we would not feel th e pinch of this Title. Nevertheless, it may be useful to remind you th at oth er agencies have raised conscientious objection to Title V as it is now written. The Defense Department ha s noted th at thirt y days may not be suffi­ cient time to prepar e a complete acco unting of all expenditures dire ctly attri bu t­ able to an emergency declaration. The GSA representative pointed out th at it may be more informative as well as less onerous to require a na rrative descrip­ tion of how emergency powers hav e been used, ra th er tha n a lis t of figures. Certainly it should be possible to reach a solution whereby Congress receives meaningful information and the Executive branch is not subjected to inordin ate adm inistrative burdens.
105

Title VI serves a dual function. Section G01 repeals a number of obsolete emer­ gency provisions; the Administration supports all of those repealers. Section bO- is in a sense the obverse of section 601. While the latter eliminates certain emergency powers which are clearly of no present or futu re utility, section preserves in effect those powers and dispositions which, although originally co

n " 

ferred or established under emergency statutes, are clearly a necessary and de­ sirable feature of our normal governmental system. I will not speak to each of the provisions covered by section 602, but leave t hat to the agencies whose programs they affect. As you have no doubt obseived, they tend to be rather mundane examples of the day-to-day functions of govern­ ment. What I do wish to support with the utmost strength, however, is the necessity for a provision such as section 602, whatever specific items you choose to include within it. As I noted at the outset of my testimony, the core of. the problem with emergency legislation is the fact tha t much which is authorized and much which has been done under it is really not of merely an emergency nature. Simply to abolish all emergency powers and dispositions on a specified date is not to solve this problem but to ignore it. The greatest par t of the effort which the Executive and Legislative branches have devoted to this bill over the past several years has been directed towards identifying these powers and dis­ positions which should be preesrved while the rest are abandoned. I t is our hope tha t within a short time those provisions of law can be converted from the “emergency” portions of the Code in which they now appear to standard, non­ emergency sections. Until tha t is achieved, however, the technical conditions which enable them to remain effective must be preserved. This is achieved in section 602, by preserving the effect of previously issued declarations of national emergency only with respect to these specified provisions. Mr. Chairman, I would like to conclude by renewing my endorsement of the purpose and effect of this proposed legislation. It enables the elimination of a confusing and irrational state of affairs which has long existed and constantly worsened; and it provides assurance against the reappearance of such a state of 

affairs in the future.

[Whereupon, at 11:50 a.m., the subcommittee adjourned, subject to 

the call of the chair.]

5 2 -2 1 8— 75 ------ 8

APPENDIX

A pp en d ix 1

Department of J ustice, 

Washington, D.C., May 8, J975.

Hon. Walter Flowers,

Chairman, Subcommittee on Administrative Law and Governmental Relations, Judiciary Committee, House of Representatives, Washington, D.C.

Dear Mr. Chairman : This is in response to requests for information made by members of your subcommittee at the time of my testimony on April 9, 1975, and subsequently by committee staff, relating to II.R. 3884, the proposed “National Emergencies Act,” as introduced on February 27, 1975. 1. A question was raised by Representative Jordan concerning the effect of the bill upon the rights of persons missing in action. As I indicated at the hearings, the bill provides, in the savings clause of § 101(a) (3), tha t rights which matured prior to termination of existing emergency powers will not be affected. The statement submitted to the subcommittee by the Defense Department on March 19 states that there are currently 913 members of the armed forces listed as missing in action in Southeast Asia. It further indicates tha t only the emer­ gency authority of 10 U.S.C. 3313, 6386(c), and 9313 authorizes the suspension of mandatory separation and retirement requirements and permits some of these individuals to be kept on the military rolls. Their continuation on the rolls results in certain continuing benefits to their families. The ability to receive such benefits in the future is not, in my view, a “matured righ t” which would be 

preserved by § 101(a) (3). 2. Representative Mazzoli asked howr

 II.R. 3884 relates to the War Powers Resolution, 50 U.S.C. 1541-48 (Supp. II I) . Although the Resolution does contain the words “national emergency,” it does not assert tha t exercise of Presidential 

powers are conditioned ui>on a declaration to that effect. Section 2 of the Resolution, entitled “Purpose and policy,” states that the “constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to * * * (3) a 

national emergency created by attack upon the United States” (emphasis added). 

This merely asserts the de facto existence of a national emergency (created by attack) as a condition for the exercise of Presidential powers; but does not require a Presidential declaration of such emergency as a prerequisite. It follows that the provisions of II.R. 3884 which relate to termination of emergency powers triggered by Presidential declaration would not affect the War Pow’ers Resolution. Another issue related to the War Powers Resolution could be raised by § 301 of H.R. 3884, which states: “Whenever Congress declares war, any provision of law’ conferring powers and authorities to be exercised during time of war shall be effective from the date of such declaration.” There are a number of references in the War Pow’ers Resolution to declarations of war or the absence of such a declaration. See 50 U.S.C. 1541(c), 1543(a), 1544(b) and (c). For example, the President must terminate certain use of armed forces after 60 days unless Con­ gress “has declared war” or other conditions have been met. 50 U.S.C. 1544(b) (1). It does not appear th at § 301 would affect the operation of any of these provisions, but its inclusion in the present bill is strange in light of the existence of that other statute addressed specifically and entirely to the war powers issue. As I indicated in my testimony, I am unclear as to the purpose of § 301. Some statutes are available for use only “during time of war,” but § 301 would not make any change in tha t availability. H.R. 3884 is meant to be a comprehensive solution to problems generated by 42 years of continuous use of emergency powers, and § 301 is not really pertinent to tha t solution. Since Congress has so recently legislated on W ar Powers in more systematic fashion, we w’ould have no objection to deletion of § 301.

(107)
108

3. Committee staff inquired whether in my view it would be appropriate to 

insert a provision in H.R. 3884, stating tha t the bill does not purport to deal 

with emergencies declared by Congress. As I indicated in my prepared statement, 

we do not understand the Act to supersede existing provisions of law which 

authorize congressional declarations of emergency; its focus is only on Presidential declarations. We would have no objection to language in the bill stating 

this explicitly.

4. I indicated to Representative Shattuck tha t I would check on whether there 

had ever been a congressional declaration of emergency. There has been at least 

one. The enactment clause of the Emergency Banking Act of 1933 states that “the 

Congress hereby declares tha t a serious emergency exists and tha t it is imperatively necessary speedily to put into effect remedies of uniform national application.” 48 Stat. 1. It is not clear tha t this declaration had any legal effect at the 

time, since the Emergency Banking Act powers were only triggered by Presidentially declared emergencies; the Act also approved an emergency proclamation by President Roosevelt made a few days earlier. 48 Stat. 1. A paper prepared 

in our Office describes the sequence of events in some detail. See S. Rep. No. 

93-549, pp. 185-187.

The Senate Special Committee was apparently of the view tha t the congressionally declared emergency is still in effect. S. Rep. 93-549, p. 594. If the Congress wishes to repeal its 1933 declaration, we would have no objection. I t could 

be added to the list of obsolete provisions in § 601.

5. Staff has also inquired concerning the definition of “national emergency” 

in § 101(b) of the bill. At present these words mean “a general declaration of 

emergency made by the President pursuant to a statute authorizing him to 

declare a national emergency.” We would have no objection to deleting the words 

“pursu ant to a statute authorizing him to declare a national emergency.” As 

noted in our statement before the subcommittee, no existing statute explicitly 

authorizes the President to declare an emergency, but such authorization is 

clearly implied by some statutes which condition the exercise of congressionally 

conferred powers upon the declaration or existence of a state of emergency. In 

our view, it is not necessary tha t § 101(b) refer specifically to such statutes. 

What is essential is tha t the definition enable the provisions of the bill to reach 

all statutes triggered by Presidential declarations; and it seems to us deletion 

of the indicated phrase would not affect that objective.

If we can be of furthe r assistance please do not hesitate to call upon us. 

Sincerely,

Antonin Scalia,

Ass ista nt Attorn ey General, Office of Legal Counsel.
A pp en dix 2

DEP A RTM EN TAL R EPO R TS

E xecutive Off ic e of th e P re sid ent,

Off ic e of Man ag em ent and B udget,

Washington, D.C., December 12, 7.974.

Hon. P eter W. R odin o. Jr ., Chairman, Committee on the Judiciar y, House of Representatives, Washington,

D.C.

Dear Mr. Cha ir m an : T his is in repl y to your le tt er of Octob er 17, 1974 to me re ques ting an ex pr es sion of my view s co nc er ni ng S. 3957, en ti tl ed “T o te rm in ate cert ain auth ori ti es w ith re sp ec t to nat io nal em er ge nc ies st il l in effect, an d to p ro ­ vide fo r or de rly im ple m en ta tion an d te rm in ati on of f u tu re n ati onal em er ge nc ies.” I t also re sp on ds to a si m il ar le tt e r of Sep tem be r 27, 1974, co nc er ni ng II.R . 10668 

an d II .R . 16743, tw o re la te d hills . S. 3957 was intr oduc ed in th e Sen at e as a re su lt of t he st udie s co nd uc ted by th e Sen at e Se lec t Co mmitt ee on N at io nal Em er ge nc ies an d D el eg at ed Emer ge nc y Po wers. I t was re port ed by th e C ha irm an of th e Sen at e Com mitt ee on Gov er n­ m en t O pe ra tio ns , w ithout am en dm en t an d w ithout hea ring s. Su bs eq ue nt ly, re pre se nta ti ves of th is Office, th e D ep art m ent of Ju st ic e, and oth er ag en cies of th e Exe cu tive Bra nc h wor ke d w ith st af f mem be rs of th e Sen at e in th e pre para ti on of an am en dm en t in th e fo rm of a su b sti tu te fo r S. 3957, as re po rted . T h at su bst it ute , w ith one una cc ep ta bl e pr ov ision, w as pa ss ed by th e Sen at e an d is no w be fo re y our Co mmittee . Se ction 20 2( a) an d (b ) cl ea rly co nt em pl at e th a t an y of th e nati onal em er ­ ge nc ies de clar ed by th e P re si dent will co nt in ue unti l te rm in ate d by him or by concu rr en t re so lu tion of th e Co ng res s. T his ac cura te ly re flec ts th e appro ac h ag re ed up on in disc us sion s w ith th e Sen at e st af f, as de sc ribe d abo ve. How ev er, Se ction 20 2( c) in je ct s, pre su m ab ly as a te ch nic al err or, th e concept th a t a co n­ cu rr en t re so lu tion co uld be co ns id er ed to c on tinue as well as te rm in ate a nati onal em erge nc y. We st ro ng ly urg e th a t th is su bs ec tio n be mo difie d by de le ting an y re fe re nc e to co ntinuat io n of nati onal em er ge nc ies by co nc urr en t reso lu tion . Su ch a ch an ge , alon g w ith an y o th er ne ce ss ar y re la te d te ch nic al ch an ge s in th e su b­ section, wo uld pr ov id e th e es se ntial cl ar ific at io n re quired to mak e th es e pro ­ vision s co ns istent w ith th os e ag re ed upon an d refle cted in Se ction 202(a ) an d (h ). If mo dif ied in th e fo re go in g m an ne r, S. 3957 wo uld be ac ce pt ab le to th e 

A dm in is tr at io n. The p ro vi sion s of II.R . 16668 an d II.R . 16743 are qu ite si m il ar to th e pr ov isio ns of S. 3957, as re por te d in th e Sen ate. Ma ny of th e pr ov isio ns of thos e bi lls a re ob ­ ject io na bl e. Th ose pr ov isio ns a re iden tif ied an d disc us se d in th e re port which th e G en er al Co un sel of th e depart m ent of th e T re asu ry se nt yo u on No vemb er 12, 1974. We as so ci at e ou rs el ve s w ith th e view s ex pr es se d in th a t re port an d re co m ­ men d ag ai nst th e e nac tm en t of eit her II.R . 16668 or II.R . 16745, as in trod uc ed .

Sincerely, R oy L. As h ,

Director.

Genera l Cou ns el of th e D epa rtme nt of D ef en se.

Washington, D.C., December 2.'t, 197}.

Ho n. P eter W. Rodin o. Jr ., Chairman, Committee on the Judiciar y, House of Representatives, Wash ington,

D.C.

D ear Mr. Cha ir man : T hi s is in reply to you r re ques t fo r an ex pr es sion of th e view s of th e D ep ar tm en t of Dpfen se on S. 3957. 93 rd Co ng ress, an Act “To te r­ m in ate cert ain auth ori ti es w ith re sp ec t to nati o n al em er ge nc ies st il l in eff ect, an d to pr ov id e fo r ord er ly im pl em en ta tion and te rm in ati on of fu tu re nati onal 

em erge nc ies.”

(109)
110

Alth ou gh th e D ep ar tm en t of Defen se part ic ip ate d in co mpr eh en sive st udie s of le gi sl at io n re la ting to ex is ti ng em erge nc ies , no fo rm al hea ri ngs were he ld in th e Sen at e on S. 3957, an d th e D ep ar tm en t of Defen se d id no t ha ve a n op po rtun ity to m ak e kn ow n its view s on th e hil l it se lf be fore ac tio n by th e Se na te. F or th is re as on it is hoped th a t th e co mmen ts ex pr es se d he re in will be ca re fu lly con­ si de re d by yo ur Co mm ittee. In th e ev en t you pla n to ho ld hea ri ngs an d de sire th e ap peara nce of a re pre se nta ti ve of th is D ep ar tm en t, I wo uld be plea se d to mak e on e av ai la bl e.

S. 3957 wo uld te rm in at e, on e y ear aft e r its en ac tm en t, an y auth ori ty co nf er re d on an ex ec ut iv e or oth er fe dera l ag ency by law or ex ec ut iv e ord er as a re su lt of th e ex is te nc e of a st ate of nati onal em erge nc y on th e da y be fo re th e te rm in at io n dat e. The bill wo uld au th ori ze th e Pre si de nt, up on cert ain fin ding s, to pr oc laim th e ex is te nc e of a fu tu re nati onal em ergency bu t wo uld re quir e th e pr oc la m at io n to be tr ansm it te d to Con gress an d pu blishe d in th e F edera l Reg iste r. Su ch a fu tu re nat io nal em erge nc y wou ld te rm in ate up on a co ncu rr en t reso lu tio n by Con gr es s or by a pr oc la m at io n of th e Pre si de nt. T hus a fu tu re nat io nal em er ­ ge nc y co uld be te rm in at ed by eit h er Co ng ress or th e Pre si den t.

As a pre re qui si te to th e ex er ci se of an y po wer s or au th o ri ti es mad e av ai la bl e by sta tu te fo r use in th e ev en t of an em ergency, th e bil l wou ld re qu ire th e P re si ­ den t to specify th e pr ov isions of law und er which he or oth er officals of th e Gov­ er nm en t prop os e to ac t.

Enum er at io n of su ch po w er s an d auth ori ti es wou ld be re quir ed to be tr a n s­ m it te d to Co ng res s an d pu bl ishe d in th e Fed er al Reg iste r. F u rt h er, th e Pre si den t wou ld be re qu ired to m ain ta in a file an d in de x of al l sign ific an t pre si den tial ord ers an d pr oc la m at io ns an d ea ch fe de ra l ag en cy wo uld be re quir ed to m ai nta in a file or inde x of all ru le s an d re gula tions issu ed duri ng fu tu re nat io nal em er ­ ge nc ies. Co pies of al l su ch pre si den tial an d fe dera l ag ency is su an ce s wo uld be re quir ed to be tr ansm it te d to Con gr es s pr om ptly .

W orld an d na tiona l co nd iti on s ha ve ch an ge d sin ce Pre si dent T ru m an officially pr oc laim ed th e st ate of nat io nal em erge nc y in 1950 in ci de nt to th e comm enceme nt of host il it ie s in Ko rea . Ma ny au th o ri ti es wh ich were us ed th en fo r th e first tim e wen* re ga rd ed as extr aord in ary . Sinc e then , ex pe rien ce has dem onst ra te d a need fo r th es e auth ori ti es in th e re g u la r co nd uc t of th e da y- to -d ay oper at io ns of th e D epart m ent of De fen se. T he desi ra bil it y of te rm in ati ng exis ting st ate s of em er ­ gency is rec og nized an d no ob ject ion to th eir te rm in ati on is ente rt ain ed by th e D epart m ent of De fen se. How ev er, th er e are cert ain co nt in ui ng needs, ou tlin ed below, which are ac co mmod ate d by th e ex is ting nat io nal em erge nc y pr oc laim ed by P re si den t Tru m an in 1950 but wh ich are no t specifically pr ov id ed fo r in S. 3957 as pa ss ed in th e Sen ate.

I‘i rs t. th er e are 981 mem be rs of th e ar m ed forces who are st ill miss ing as a re su lt of th eir par ticip ati on in th e re ce nt hos tilities in South ea st As ia. Alth ou gh th e D ep ar tm en t of Defen se is m ak in g ev ery effo rt to reso lve th e unce rt ai n st atu s of th es e me n. se ve ra l fa cto rs ha ve ha m pe re d th is ef fo rt so th a t it is no t po ssi ble to pr ed ic t th e ex ac t date by which th eir st atu s wi ll be fin all y de term in ed . One of th es e fa cto rs is th e de cree of a fe der al co ur t in a ca se st yl ed McD on al d v. J/cL z/cu.<f. 1 .S.D .C., S.D.X.Y .. 73 Civ. 3190, wh ich pr ec lu de s th e Sec re ta ri es of th e m il it ary dep ar tm en ts fro m ch an gi ng th e st atu s of th os e now cla ssifi ed as miss ing in ac tion to kille d in ac tion unti l th e pri m ary nex t of kin are affo rded an op po r­ tu n it y to att end a hea ri ng w ith co un sel to pre se nt w hat ev er ev iden ce th ey deem re le vant an d to ex am in e se rv ice files. Pet itio n fo r review of th is decis ion is now 

pe nd in g be fo re th e U.S . Su pr em e Cou rt. In th e m ea nt im e on ly th e em ergency au th o ri ty of 10 U.S. Code 3313. 63 86 (c ) an d S313 auth ori ze s th e su sp en sion of m an dato ry se pa ra tion an d re ti re m ent re qu ir em en ts wh ich wo uld ot he rw ise be ap ­ pl ic ab le to allow som e of th es e m em be rs to re m ai n in th e ar m ed fo rc es unt il they re tu rn or are ac co un ted fo r.

W het her or no t th eir si tu ati on is view ed as w arr an ti n g co ntinu at io n of a n a­ tional em erge nc y, it wo uld he in eq uitab le to fo rc e th eir se para ti on or re ti re m en t w hi le the y are in a m issing sta tu s.

In th e field of pe rson ne l adm in is tr ati on th e em erge nc y au th o ri ty of 10 U.S.C. 3444 an d 8444 ha s been us ed to g ra n t re lief , by way of tem pora ry ap po in tm en t, to officers in th e ch ap la in , ju dg e ad voca te an d med ical fields wh o. be ca us e of con­ str u cti v e se rv ic e cr ed it in th e ir sp ec ia ltie s, a re co ns id er ed fo r per m an en t prom o­ tio n e a rl ie r th an th eir lin e officer counte rp art s an d wh ose se para ti on fo r fa il ure of pr om ot io n m ig ht becom e m andato ry under co nd itio ns in co nsi st en t w ith th e ne ed s of th e ar m ed forces or fa ir n ess to th e officers. Leg isla tion wh ich wo uld .
I l l

am on g o th er th in gs , pr ov id e a so lu tio n in per m an en t la w fo r th is pr ob lem has bee n in trod uc ed a t th e re ques t of th e D epart m ent of D ef en se in th e H ou se of R ep re se nt at iv es (I I.R . 12405 an d II .R . 12505) and heari ngs hav e be gu n on bo th of th e bills inv olved. How ev er, th e le gis la tive ch an ge s which th es e bi lls wou ld effect are so ex te ns iv e th a t it wo uld not be re ali st ic to ex pe ct en actm ent in th is 

Con gress or ea rl y in th e ne xt . In ad di tion to th es e pr ob lems which wou ld re su lt from allo win g th e em er ge nc y au th o ri ty no w pr ov id ed by 10 U.S.C. 3444 and 8444 to lap se, th e P re si dent, as co mm an de r in ch ie f of th e ar m ed forces, wo uld ha ve n o au th o ri ty to g ra n t te m po ­ ra ry ap po in tm en ts to tr u ly ex ce pt iona l officers of th e Arm y or A ir Fo rce, l o r ex am ple, th e P re si dent us ed th is au th o ri ty to ex te nd a te m pora ry appoin tm ent to th e ne xt hi gh er gra de to th e Air For ce ast ro n au ts wh o su cc es sful ly co m pl eted su borb ital or orb it al fli gh ts. Con tinu at io n of th is la ti tu d e is n ee de d so th a t ex ce p­ ti onal in di vi dua l contr ib utions ca n st il l be reco gn ized th ro ugh te m pora ry 

ap po in tm en ts. T er m in at io n of em er ge nc y au th o ri ty under 10 U.S .C. 3444 an d 8444 wou ld also de ny to th e Arm y and A ir Fo rc e th e on ly au th o ri ty avai la ble in som e ca se s to ap poi nt al ie n do ct or s as offic ers to mee t in cr ea si ng ly c ri ti cal sh or ta ges of m il it ary 

m ed ical pe rson ne l. Ter m in at io n of th e 1950 nat io nal em er ge nc y wou ld al so te rm in ate en ti tl em ent to dis ab ility re ti re m ent or se par at io n be ne fit s under 10 U.S .C. 1201 an d 1203 fo r mem be rs w ith less th an 8 yea rs of se rv ice wh ose dis ab ility, al th oug h in curr ed in line o f duty w hile o n act iv e du ty, was not t he pro xim at e re su lt o f t he per fo rm an ce of ac tive du ty. Im pos itio n of th is lim it ati on—which wou ld af fe ct on ly th e ju n io r officers an d en list ed men —-is part ic ula rl y un tim el y whe n th e ar m ed fo rc es are en de av or in g to m ee t th eir man po wer ne ed s th ro ugh volu nta ry means. C ontinua­ ti on of th e au th o ri ty to re ti re or se para te m il it ary pe rs on ne l w ith less th an 8 years of se rv ice who become un fit fo r fu rth e r se rv ice by re as on of a dis abil it y in curr ed in line of duty , is ne ed ed as p a rt of th e m il it ary dis ab ility sy stem . Ter m in at io n of th e nati onal em erge nc y wou ld also te rm in ate th e au th o ri ty of th e D ep ar tm en t of D ef en se (a nd cert ain o th er ag en ci es ) under Pu bl ic Law 85- S04 (50 U.S.C . 1431- 1435) to co rr ec t m is ta kes in contr ac ts , to fo rm al iz e in fo rm al co mmitm en ts, to in de m ni fy co ntr ac to rs ag ain st losses or claim s re su ltin g from un usu al ly h azar dous ri sk s to w hich th ey m ig ht b e ex po sed duri ng th e pe rf or m an ce o f a contr act an d fo r which in su ra nc e, ev en if av ai la ble , wo uld be pro hi bi tive ly ex pe ns ive, an d to g ra n t oth er ex tr ao rd in ary contr actu al re lie f. Th e Co mm iss ion on Gov ernm en t Pro cu re m en t, e st ab lish ed by Pu bl ic L aw 91 -12 9, ha s reco mmen de d th a t th e au th ori zati ons of I ’.L. 85-80 4 be m ad e av ai la ble ge ne ra lly ra th e r th an be ing de pe nd en t up on th e ex istenc e of a sta te of w ar or nati onal em ergency. But, here also , en ac tm en t of t he Co mmiss ion's r ec om m en da tion in th e nea r fu tu re does 

no t ap pea r lik ely . S. 3957 wo uld ad ver se ly affect de fens e contr acti ng in anoth er wa y, th a t is. in de ny ing th e em erge nc y ex ce pt io n to th e re qui re m en t fo r ad vert is in g p ro cu re m en ts not ot he rw ise auth ori ze d to be ne go tiated . Cf. 10 U.S.C. 23 04 (a ) (1 ). Thi s ex ce p­ tion is now nar ro w ly lim ited in its appl ic at io n by th e pert ie nt Arm ed Se rvices P ro cu re m en t R eg ul at io n (32 CFR 3.2 01), but it s ap plica tion affects m aj or social an d econo mic po lic ies — th e po lic ies to fa vor la bor su rp lu s and dis ast er a re as an d sm al l bu sine ss an d to ac hi ev e a ba lanc e of pa ym en ts fa vora ble to th e U ni te d 

Sta te s. Con tinu at io n of se ver al em erge nc y au th o ri ti es go ve rn in g pe rs on ne l ad m in is tr a­ tion in th e na va l se rv ic e is also needed. The se au th o ri ti es in cl ud e 10 U.S .C. 52 31 (c ), which su sp en ds exis ti ng li m itat io ns on th e nu m ber of adm ir als an d vic e ad m ir als of th e Na vy . If th is au th o ri ty is not co nt in ue d, th e Navy wo uld los e ap pr ox im at el y on e h a lf of it s th re e- an d fo ur- st ar ad m ir al s. Sim ilar ly 10 U.S .C. 52 32 (b ) su sp en ds e xis ti ng li m it ati ons on l ie u te n an t gen er al s of t he M ar in e Co rps. If th is au th ori ty is not co nt in ue d, th e M ar in e Corps wo uld los e five of th e cu r­ re ntl y a ut ho ri ze d seve n li eu te n an t ge ne ra ls. Se cti on 57 11 (b ) of ti tl e 10 a uth ori zes th e susp en sio n of th e sta tu to ry lim it of 5% below- the-z on e se lectio ns specified in se ction 57 07 (c ). C ontinu at io n of th e au th o ri ty pr ov id ed in 10 U.S .C. 57 85 (b ) is ne ed ed to su sp en d tim e- in -g ra de Nav y an d M ar in e Cor ps re qui re m en ts fo r pro ­ motion to al l gra des ex ce pt li eute nant an d li eu te n an t co mm an de r. T his sta tu te is also th e au th o ri ty fo r su sp en sion of th e m andat ory lin e fr acti on fo r pr om ot io n of st af f co rps officers. Se cti on 5787 of ti tl e 10 pr ov id es fo r te m pora ry pr om ot io ns in th e Na vy. F ail u re to re ta in th is au th o ri ty wo uld re quir e appro xim at el y 650 lim ited duty officers in th e gra de of li eu te n an t co m m an de r to re vert to th e gra de
of lieu tenant. Discontinuance of this authority would also require Senate confirmation of all promotions to lieutenan t (ju nio r gra de) .

In view of the need for continuation of the author itie s referred to above, the 

Departme nt of Defense recommends that any legislation terminating emergency 

powers except the cited statutes from its effect to prese rve the sub stan tive provisions which are now needed b ut which would be lost by termination of the 1950 

nat ion al emergency.

In general, the Departm ent of Defense is in accord with the S. 3957 goal of 

repealing obsolete or unnecessary emergency laws. Therefore, subject to the foregoing rese rvation s and recommendations, thi s Departm ent does not object to 

enac tment of S. 3957.

The Office of Management and Budget advises that, from the stan dpo int of the 

Adm inistration’s program, there is no objection to the submission of this letter 

for the consideration of the Committee.

Sincerely,

Martin R. Hoffmann.

General Services Administration, 

Washington, D.C., November 12, 197 If.

Hon. Peter W. Rodino, Jr.

Chairman, Committee on the Judiciary,

House of Representatives,

Washington, D.C.

Dear Mr. Chairm an: Your letter of October 2, 1974, requested the views of 

the General Services adm inistration on II.R. 1G668 and II.R. 16743, bills concerning the term ination of national emergencies and certain autho rities with 

respect there to.

We attach a copy of a letter dated March 11, 1974, to Hon. Sam J. Ervin, Jr., 

Chairman of the Senate Committee on Government Operations, review ing st at ­

utory autho rities th at would be affected by a term ination of the curre nt sta te 

of national emergency. Of particu lar concern to us are the autho rities described 

under the head ing “II. Statute s Th at Should be Designated as Essential to the 

Reg ular Fun ctioning of the Government.”

We continue to support fully the views expressed in our let ter to Senator 

Ervin.

By lette r dated October 17, 1974, you requested our views on S. 3957, a similar bill which, as passed by the Senate on October 7, 1974, includes a sectio n 

692 sta tin g th at the provisions of the Act shall not apply to certain listed provisions of law and the powers and autho rities conferred thereby. This section 

preserves the autho rities which are of prima ry concern to GSA. Accordingly, 

we support the Senate-passed bill in principle, and we strongly urge th at your 

Committee tak e sim ilar action respectin g any bill on the subject which it may 

report.

We note with some concern, however, th at section 20 2(c)(1) of S. 3957, by 

referring to a concurrent resolution “to continue” a national emergency, could 

be interpreted to require Congressional approval in orde r for a nation al emergency to continue beyond six months. We believe th at section 202 should be 

revised to permit the continuance of a nation al emergency beyond six months 

if the Congress has not approved a resolution discontinuing it. Otherwise, if 

the Congress faile d to take action one way or the other under the existing provisions with in six months, the sta tus of the national emergency and the st at ­

utory autho rities activated by it would be placed in doubt and could res ult in 

unnecessary, lengthy, and burdensome litig atio n.

The Office of Management and Budget ha s advised tha t, from the standp oint 

of the Administration’s program, the re is no objection to the submission of this 

report to your Committee.

Sincerely,

Larry F. Roush,

Acting Assistant Administrator.

March 11, 1974. Don. Sam J. Ervin, Jr.

Chairman, Committee on Government Operations, U.8. Senate, Washington, D.C.

Dear Mr. Chairman : We appreciate your request for the views of the General Services Adm inistration regarding the effect of a possible termin atio n of

the sta te of national emergency declared by President Truman in 1950.
113

Your le tter of July 23, 1973, specifically requests the views of GSA regarding certain statutes now available for use during a national emergency. The sta t­ utes are listed in a lette r dated June 12, 1973, from the Special Committee on the Termination of the National Emergency to the Chairman of the Committee on Government Operations. Your lette r seeks the views of this Agency on those statutes which relate to the work, responsibilities, or jurisdiction of GSA and invites GSA’s general views with respect to any other of the listed statutes. Since our response to your lette r involves a review of particular emergency statutes tha t might be affected by a termination of the current state of national emergency, it had been deferred for some time pending full coordination and discussion of the broader implications of possible action to terminate the emer­ gency. As a result of this discussion and coordination, this Agency has had some direct contact with the Special Committee on the Termination of the National Emergency. A copy of my letter to Senators Church and Mathias, Co-chairmen 

of tha t Committee, is enclosed. The Special Committee has requested the analysis of existing emergency stat­ utes in terms of the following categories: (1) those which can be repealed because they are obsolete; (2) those which should he designated as essential to the regular functioning 

of the Government; (3) those which should he retained in readiness for some future emergency; 

and(4) those “open-ended” emergency provisions which “should be recast in more precise language for use on a case by case basis in the event of some 

future emergency.” It is the view of this Agency tha t extreme care must he taken to prevent the lapse of certain statutes essential to the regular functioning of Government. In addition most of these statutes should he retained on a prospective basis for future emergency situations. GSA submits the following comments on these stat­ utes. (These comments generally list the statutes with the numbers, and in the format, used by the Special Committee in its request.)

I. EMERGENCY STA TUT ES W HIC H CAN BE REPEALED BECA USE TH EY ARE OBSOLETE

With respect to its application to GSA, the following statute falls into this category. We note, however, tha t other agencies may be more directly involved. 

B(167) Settlement of claims under war contracts 41 U.S.C. 101-25 This statute, known as the Contract Settlement Act of 1944, refers primarily to contracts entered into during the World War II period (but prior to the en­ actment of the Armed Services Procurement Act of 1947). Since GSA itself has no outstanding contracts relating to tha t period, we defer as to the necessity of retaining this statute to the judgment of other agencies who were more di­ rectly involved with those war-period contracts.

II . STATUTES TH AT SHOU LD BE DESIGNATED AS ES SE NT IAL TO TH E REGULAR 

FUNC TIO NING OF THE GOVERNME NT

A(l) During war or a national emergency declared by Congress or by the Presi­ dent provisions of the act of June 30, 1932, restricting the rental on buildings leased to the Government to 15 percent of the fair market value, may he suspended. [Act of April 28,1942 ; 5G Stat. 247 ; 40 U.S.C. § 278b.] It is our considered judgment thattlie authority to lease space for Govern­ ment purposes without regard to the rental limitation of 40 U.S.C. 27Sn should he designated as essential to the regular functioning of the Government. A recent example of the necessity for this authority is the fire which occurred on .Inly 12, 1973, at the Military Personnel Records Center in St. Louis. Missouri, which caused substantial damage to a building containing 1.600,000 cubic feet of per­ sonnel and medical records relating to former military personnel. In order to preserve the existing vital records and to assist in the resumption of operations of the Center, it was necessary to obtain space on an emergency basis. A certification, therefore, was obtained from the Department of the Army authorizing the leasing of space without regard to the limitations of 49 U.S.C. 278a. Without this exemption, the acquisition of the substitute space would have been delayed resulting in farthe r damage to valuable records.
114

A (3) Contracts for supplies and services und er the Federal Prop erty and Admin istr ative Services Act of 1949, may be negotiated with out advertising if 

determined to be necessary in the public intere st “during the period of a national emergency declared by the Pre sident or by the Congress.’’ [Act of June 

30, 1949; 63 Sta t. 393 § 302(c) ; 41 U.S.C. §252.]

This statute permits the negotiation of procurement contrac ts in times of 

national emergency. The natio nal emergency declared in 1950 is the basis for 

the curre nt use of this negotiatin g au tho rity in a limited number of circumstances. These pertain to small business set-asides, labor surplus set-asides, and 

balance of payment procedures. Since a term ination of the emergency could 

seriously affect cer tain of these programs, possible altern ative legislation, or 

other means of continuing the viab ility of these programs, should be considered.

B(3 9) Exemption of certain purchases from form al adv ertisin g requirements.

10 U.S.C. 2394(a) (1) , (2), (16).

These sta tut es pertain to functions being performed by the Department of 

Defense or certain other agencies (NASA, and Coast Guard) which are directly 

subject to the provisions of Title 10 of the U.S. Code. We defe r to the judgment 

of those agencies as to the legislative action to be taken in regard to cer tain 

Title 10 statu tes. 9

B(145) Reduction or set-off against assignee. 31 U.S.C. 203, 41 U.S.C. 15.

This statute, which allows the inclusion in procurement con trac ts of provisions to preclu de the making of reduction s or set-offs (subject to cer tain exceptions) again st con tract assignees, is pred icated upon tile existence of a 

national emergency, and specifically th e T rum an emergency. This authority relating to con trac t assignments should be reta ined regardless of the term ination 

of the national emergency, since it permits a flexibility on contracting which 

often benefits the Government by enhancing the availability of private financing 

to supp ort necessary procurement.

B(164) Same as A (l ), ttupra.

III. STA TUTES W H IC H SHOU LD BE RET AINED IN REA DINESS IN TH E EVEN T OF 

SOME FUTURE EMERGENCY

Listed below are those statutes included in the Committee's request which in 

the opinion of this Agency should be retained for possible emergency use. In 

our judgm ent, none of the emergency sta tutes which apply to the real prop erty 

disposal area should be modified or repealed. Many of these sta tut es authorize 

recapture provisions in deeds th at could be exercised in time of national emergency. Such provisions have already been included in conveyances, and to repeal 

these laws might imply that these provisions are released and would not be 

effective in the future. It would not serve the best intere sts of the Government 

to release such provisions without consideration.

A (2) During any national emergency declared by the President or by the

Congress, the T’nited States may have exclusive or non-exclusive control and 

possession of air ports disposed of as surplus under autho ritv of this act. [Act 

o f Jul y 30. 1947 : 61 Stat. 679(E) ; 50 U.S.C. App. 8 1 62 2( g) (2 )(E).]

A (4) In time of war or national emergency heretofore or herea fter declared

by the President or the Congress, the United States may use all or any part I

of the land in Marion County authorized hereunder to he conveyed to the 

State of Indiana. [Act of June 4, 1954 ; 68 Stat. 172 §2 (1) ; 17 3'§ 2(3).]

A (5 1 The conveyance transf err ing cer tain prop erty of the United States in 

Klamath County, Oreg., to the Sta te shall provide that whenever the Congress 

of the United States shall declare a state of war or other national emergency. ?

or the Pre sident declares a state of emergency to exist, the United States may 

use the prop erty for the duration of such war or emergency plus 6 months.

[Act of August 30. 1954; 68 Stat. 981.]

A (6) The deed conveying a portion of the former O'Reilly General hosp ital at

Springfield, to the Sta te of Missouri, shall nrovide that during any period 

of national emergency, the United Sta tes shall have the rig ht of exclusive use 

without charge therefor. [Act of August 9. 1955 ; 69 Stat. 592.]

A (7) The deed, conveying a portion of the former prisoner of war camp, near

Douglas. Wvo. to the State, shall expressly reserve to the United States the 

right of exclusive use during any period of national emergency. [Act of Jun e 

25, 1956 ; 70 Sta t. 337 § 1.]
115

A(8) The General Services Administration may negotiate for disposal of surplus property without regard to requirements of advertising for bids, etc., but subject to obtaining such competition as is feasible under the circumstances, if necessary in the public interest during the period of a national emergency declared by the President or tlie Congress. [Act of July 2, 1958; 72 Stat. 288; 

40 U.S.C. § 484(e) (3).] B(2) The President may suspend requirements for the filing of documents for publication in the Federal Register in the event of an attac k or threatened attack upon the continental United States by air or otherwise. [Act of June 25, 1956; 70 Stat. 337-338 ; 44 U.S.C. 1505(c).] B(8) Effective “during a national emergency declared by Congress or the Presi­ dent and for six months after the termination thereof or until such earlier time as Congress, by concurrent resolution, may designate,” the President may authorize any departm ent or agency of the Government exercising functions in connection with the prosecution of tlie national defense effort, to enter into contracts or amendments or modifications of contracts, and to make advance payments thereon without regard to other provisions of law relating to con­ tracts whenever he deems such action would facilitate the national defense. [Act of August 28, 1958; 72 Stat. 973 § 5; 50 U.S.C. § 1435.] B(144) Accounting. 31 U.S.C. 82i, B(166) Exemption from advertising requirements, 40 U.S.C. 484(e). (Same as 

A(8), supra) B(168) Exemption from advertising requirements, 41 U.S.C. 252(ac), as applied to 40 U.S.C. 35 6( j)(l). (Otherwise see A(3), supra) B(180) Suspension of Federal Register Act. 44 U.S.C. 1505 (Same as B(2), 

supra) B (181) Destruction of Military or Naval records.

44 U.S.C. 3311. B(228) Civil Defense Emergency. 50 App. U.S.C. 2291-2297. We find no statutes among those listed which should be recast in more pre­ cise language. As to statutes listed by the Committee but not discussed herein, the General Services Administration defers to other agencies more directly 

involved.

Sincerely, Arthur F. Sampson,

Administrator.

Department of State, 

Washington, D.C., November 27, 197}.

Hon. Peter W. Rodino, Jr. Chairman, Committee on the Judiciary, nou se of Representatives, Washington,

n.c.

Dear Mr. Chairman : I have been asked to reply to your letter of October 17 to the Secretary of State requesting views on S. 3957, a bill “To terminate certain authorities with respect to national emergencies still in effect, and to provide for orderlv implementation and termination of future national emergencies.” The Department of State has no objection to S. 3957 as passed by the Senate following amendments to the bill reported out of Senate Committee. The Office of Management and Budget advises tha t from the standpoint of the Administration’s program there is no objection to the submission of this report.

Cordially, Linwood Holton.

Assistant Secretary for Congressional Relations.

The General Counsel of the Treasury,

Washington, D.C., November 12,197}.

Hon. P eter W. Rodino, Jr. Chairman, Committee on the Judiciary, House of Representatives, Washington,

n.c.

Dear Mr. Chairman : Reference is made to your requests for the views of this Department on H.R. 10668, H.R. 16743, and S. 3957, similar bills, “National 

Emergencies Act.”
II.R. 166G8 wo uld te rm in ate al l nat io nal em erge nc ies in effect a t th e tim e of 

its en ac tm en t. II.R . 16743 an d S. 3957 wo uld bo th te rm in ate all po we rs an d 

au th o ri ti es be sto we d up on go ve rn m en ta l bo die s du e to p ast nati onal em ergencies , 

al th ough S. 3957 wo uld ex em pt ce rt ain sta tu te s from th e ap pl ic at io n of its 

pr ov isio ns . All th re e bi lls wou ld es ta bl is h pr oc ed ur es fo r Pre si denti al decl ara ­

ti ons of fu tu re national em erge nc ies. II.R . 16668 an d II.R . 1G743 wo uld prov ide 

fo r th e au to m ati c te rm in at io n of such em erge nc ies aft e r 180 da ys , ab se nt Co ngr es si on al ac tio n, while S. 3957 wo uld re quir e Con gress to m ee t w ith in six 

m on th s a fte r th e dec la ra tion of su ch an em erge nc y to det er m in e w het her such 

em er ge nc y sh ou ld he te rm in ate d by co ncu rr en t re so lutio n.

II.R . 16668, II.R . 16743, an d S. 3957 are vari ati o n s of th e “N at io na l E m er ­

ge nc ies A ct” pr ep ar ed by th e S en at e Sp ec ial Com m itt ee on th e Ter m in at io n of 

th e N at io nal Em erge nc y fo llow in g hea ri ngs pert ain in g to th e des ir ab ility of 

re pea ling ex is ting nat io nal em erge nc ies. No hea ri ngs ha ve been he ld, ho wev er, on 

an y v er si on o f t he “N at io na l Em er ge nc ies A ct.”

T he pr ov isio ns of bo th II.R . 1666 8 an d II.R . 16743 a re of se riou s co ncern 

to th is D ep ar tm en t. S. 3957, on th e oth er ha nd , wo uld pre se nt few problem s. 

The m ajo r ob jections of th e D ep ar tm en t re la te to th os e pr ov isio ns in section 8 

of II.R . 16668 an d in se ct ion 691 of II. R. 16743 which wo uld re pe al 12 U.S.C. 95 

and 12 U.S.C. 95a (s ec tio n 5 (h ) of th e T ra din g w ith th e Ene m y A ct ). Th e 

D ep art m ent opp ose d th e re pea l of th es e st atu te s in its re port to th e Se na te 

Sp ec ial Com mittee on th e T er m in at io n of th e N at io nal Em erge nc y and co ntin ue s 

to be opposed .

12 U.S .C. 95 re la te s to li m it ati ons an d re st ri cti ons on th e bu sine ss of mem be rs 

of th e Fed era l Res erve Sy stem “d uri ng such em erge nc y per io d as th e Pre si den t 

. . . m ay pr es cr ib e.” The se ction w as en ac te d M arch 9, 1933, and ha d specific 

re fe re nc e to de cl ar at io n of th e “b an k hol id ay ” pr oc la im ed by th e Pre si den t on 

M arch 6, 1933. Th e st atu te , al th ough pa ss ed to ra ti fy th e a ct io n of th e Pre si den t 

in clos ing th e ha nk s, is not ob solet e. Th e la ngu ag e of th e se ct io n in ve sts th e 

Exe cu tive w ith th e au th o ri ty to re gula te or su sp en d th e acti vit ie s of all ba nk s 

th a t are mem be rs of th e F ed er al Res erve Sy stem —which wou ld in cl ud e all 

nati onal ha nk s— du ring an em erge nc y. The D epar tm en t is of th e op inion th a t th e 

au th o ri ty to so act in tim es of fina nc ial cr is is is ne ce ss ar y. Thu s, 12 U.S.C. 95 

sh ou ld he re ta in ed as an em er ge nc y st atu te , as wo uld be al lo w ed ’by S. 3957.

12 U.S.C. 95a, wh ich em bo dies se ction 5 (b ) of th e T ra d in g w ith th e En em y 

Act. pr ov id es fo r th e reg ula tion by th e P re si den t d uri ng p erio ds o f w ar or n at io nal 

em er ge nc y of ha nk ing tr ansa cti ons, gold an d si lv er act iv itie s, tr ansa cti ons in 

fo re ig n ex ch an ge , an d th e ex er ci se of ri ghts in pro per ty su bje ct to American 

ju ri sd ic ti on in which fo re ig n nati onals ha ve an in te re st . Se ction 5(b ) of th e 

T ra din g w ith th e En em y Act is al so cod ifie d in 50 U.S.C. App. 5 (h ). Und er th e 

au th o ri ty of se ction 5 (b ), re gula tions ha ve been issu ed und er which co ntro ls are 

m ai nta in ed in im pl em en ta tion of ex is ting po lic ies w ith re sp ec t to N or th Korea . 

N or th Vietnam , an d Cu ba, am i som e $89 million of Chine se ass et s ha ve bee n 

froz en in ord er to he av ail able in th e se ttle m en t of claim s of Am er ic an citiz en s 

fo r th e ex pro pri at io n of th eir pro pert y in m ai nl an d Ch ina.

T he D ep ar tm en t be lie ve s th a t section 5(b ) of t he T ra din g w ith th e En em y Ac t 

is no t ob so lete an d no t on ly sh ou ld no t be repe aled , but sh ou ld be ex clud ed from 

th e pr ov isio ns of th e hi lls as a wh ole , as is prov id ed by S. 3957. Secti on 5(b ) 

sh ou ld be av ai la bl e to de al w ith fina nc ial em erge nc ies which m ay ari se in th e 

fu tu re .

Furt herm ore , inc lusio n of se ct io n 5(h ) und er section 2 o f H.R . 16668 an d unde r 

se ction 191 of II.R . 16743 wou ld se riou sly affect th e neg otiat in g po sition of th e 

U nited S ta te s w ith re gar d to th e ex is ting co ntro ls, di sc us se d pr ev io us ly, which 

re gula te tra nsa cti ons w ith se ve ra l fo re ign co un trie s a nd th eir n ati onals and w hich 

free ze sign ific an t am ou nt s of C hine se a nd Cu ba n ass ets t o be he ld fo r an ev en tu al 

se ttle m en t of th e claims of U ni te d Sta te s citiz en s wh ose pro pert y in Co mmun ist 

China an d Cu ba ha s been seized w ithout co mpe ns ati on . In th is re ga rd , it also 

appears th a t co ns titu tiona l pr ob le m s m ig ht ari se w ith re sp ec t to th e val id ity of 

co nt in ue d blo ck ings of ass et s of fo re ig n co un trie s whe n al l nati onal em erge nc ies 

or au th o ri ti es th er eu nder hav e been te rm in at ed , as th e hi lls co ntem plate. W e 

be lie ve th a t no de fin iti ve Con gr es sion al ac tio n shou ld he effecte d w ith re sp ec t to 

section 5 (b ) th ro ug h th e ve hicle of an y of th es e bil ls. I t is es se ntial th a t be fore 

an y ac tion is take n th e appro pri ate co mmitt ee s clo sely st udy it s pote ntial im pa ct 

on se ct ion 5 (b ) of t he T ra din g w ith th e En em y Act. S. 3957 wo uld ex em pt se ction 

5(b ) fro m its pr ov isions an d wou ld en ab le such a st udy to he mad e, th us sa ti sf yin g our ob jec tio ns .
117

Ther e are several others problems with II.It. 16668 and II.R. 16743 which also seriously concern the Department. Section 2 of H.R. 16668 would terminate all national emergencies in effect on the da te of enac tment, which we und ers tan d to be four in number, 270 days after enactment, and section 101 of II.II. 16743 would term inate all powers and autho rities possessed by the Exec utive bran ch due to such emergencies within the same period. This nine month period was inten ded to give the Committees of the Congress an opportunity to ena ct into perm anent legislation those existing programs which the Congress decides should be preserved. S. 3957 provides for a one year period to be used for the same 

purpose. The Departm ent feels th at nine months, or even one year, is much too brief a time for the Congress to deal with the significant problem s which might ari se with respect to those sta tutes app ropriately covered by the hills. For example, American importers have relied extensively on the practice of warehou sing merchandise in Customs bonded warehouses for periods in excess of the ini tia l sta tutory p eriods afforded by secitons 491, 557, an d 559 of the Tariff Act of 1930. Such extensions have been made possible by Customs regulations auth oriz ed by Proc lama tion 2948 which President Tru man issued under the authority of section 318 of the Tar iff Act of 1930 (19 U.S.C. 1318), an emergency sta tut e. Due to the extensive reliance on these Customs regulations in th e past, a sta tutory replacement for the existing auth ority conferred on this D epartment by Proc lam a­ tion 2948 will be recommended. However, given the na ture of the legislative process and the mu ltitude of other legislative prog rams of curre nt importanc e, it. is unlikely th at the grace periods provided by these bills would be sufficiently long for the enactment of such legislation. Consequently, the Departm ent recom­ mends that the grace periods in all three bills be sub stantially lengthened. Section 5 of H.II. 16668 and section 402 of H.R. 16743, dealing with future national emergencies, would provide th at such emergencies are automatic ally term inated six months af te r declaration unless continued to a specified date by concurrent resolutions. Section 5 of H.R. 16668 would fu rth er provide th at no concurrent resolution extending the termination date of a national emergency shall be valid if agreed to more than ten days before the original expiration date. The Departm ent believes th at these termination provisions are undesirable. Instead, it would be preferable to adopt the termination procedure of S. 3957, which provides that f uture emergencies proclaimed by the President to deal with the highly significant national and int ern ational problem s justify ing such a declaration of national emergency should continue unless declared terminated by a concurrent, resolution of the Congress or by a Presidential proclamation. Section 6 of H.It. 16668 would provide f or the reco rdation of rules and regula­ tions promulgated during a national emergency by the Executive and for the transmissio n of such rules and regulations to the Congress at the end of such emergency. Section 501 of H.R. 16743 would provide th at orders as well as rules and regulations should be transm itted to the Congress as soon as practic able af te r issuance. Section 501 of S. 3957 would provide th at only significant orde rs as well as rules an d regulation s be tran sm itted to Congress promptly. The Depar t­ ment agree s with the principle of these sec tio ns; indeed, virtually all such docu­ ments of general app lica bility are in fac t published in the Federal Register. However, as dra fted, sectio n 501 of II.R. 16743 is so broad as to require every min ute action taken und er emergency powers to be repo rted in this fashion, including those with no policy significance whatsoever. This would impose an unworkable burden witho ut commensurate benefit on the Executive branch. In addition to the above, the Departm ent would like to make the following tech nical comm ents: (1) It would app ear th at the word “if” should be deleted from the fifth line of section 403(a) of H.R. 16743 as superfluous. (2) Section 8 of H.R. 16668 and section 601 of II.R. 16743 list as being repealed 50 U.S.C. 9 (e ), which does not seem to exist. (3) Although all three bills refer to “12 U.S.C. 95(a )”, the correct citation for the section is “12 U.S.C. 95a”. (4) H.R. 16668 and H.R. 16743 would repeal certain sections of the United States Code which have not been codified int o sta tut ory law and are merely prim a facie evidence of such law. To the e xte nt th at the law’ in these fields should he repealed, it would be prefera ble for the language of the bills to refer to the basic sta tutes which 

are involved. As a result of the above, the Department has stro ng objections to H.R. 16668 and H.R. 16743 as dra fted. S. 3957. however, would satisfactorily deal with all the aforementioned problem s which thi s Department has with the oth er two
118

bills. Consequently, the Dep artm ent recommends favorable considera tion of 

S. 3957 in lieu of action on II.R. 16068 or II.R. 16743.

The Department has been advised by the Office of Management and Budget 

th at there is no objection from the standpoint of the Administration’s program 

to the submission of this report to t he Committee.

Sincerely yours,

Richard R. Albrecht,

General Counsel.

Hon. Peter W. Rodino. Jr .

Chairman, Committee on the Judicia ry,

House of Representatives, W ashington, D.C.

Atte ntion Mr. William P. Shattuck.

Depar tm en t of Commerce, 

Washington, D.C., April 1,1975.

Dear Mr. Chairman : This is in reply to your oral request fo r information with 

respect to section 9 of the Merchan t Ship Sales Act of 1946 ( 60 U.S.C. App. 

1742) which would be repealed by section 601(g) of H.R. 3884.

The purpose of the Merc hant Ship Sales Act of 1946 ( 50 U.S.C. App. 1735 

et seq.) was to authorize the sale of seve ral thousand merchant ships of various 

types which had been built by or for the account of the United Sta tes Government during the period Janu ary 1, 1941 and September 2, 1945 to provide logistical support to the Armed Forces during World War II. It was a surplus 

property disposal statute. Sales were au thorized under the statute both to citizens 

of the United States and to aliens. The sta tute provided a form ula by which the 

fixed sales price of each type of vessel was to be ascertained . The fixed price 

at which each vessel was to be sold was 50 percent of the “prew ar domestic 

cost” of tha t type vessel. The “p rew ar domestic costs” w as defined as the amount, 

as determined by the United Sta tes Maritim e Commission, for which a vessel 

of th at type could have been constructed on or about Janu ary 1, 1941. The sales 

autho rity u nder the Act expired on Ja nu ar y 15,1951.

Between Janu ary 1, 1941 and March 8, 1946 (the date of enactment of the 

Act), the United States Maritime Commission had sold, und er other legislation, 

certain vessels built during the same period to citizens of the United States and 

had contracted to sell other vessels to such citizens the build ing of which was 

contracted for during this same period at prices considerably in excess of the 

prices a t which the same vessels would be sold und er the Act. These vessels that 

were sold prior to the d ate of e nac tme nt of the Act, nevertheless, would operate 

in competition with vessels sold und er that statute. As a matter of fairness, and 

to equalize the competitive position of these vessels sold prior to the date of enactment of the Act with th at of vessels sold under th at sta tut e, section 9 provided for an adjustment of the price of such vessels sold before its enac tmen t 

so that the cost of such vessels to their owners would be the same as though 

the vessels had been purchased und er the Merchan t Ship Sales Act of 1946.

To qua lify for the adjustm ent, however, the owners of such vessels were 

requ ired by section 9 to apply w ithin 60 day s after the d ate on which the United 

States Maritim e Commission published in the Federal Reg iste r the applicable “pre war domestic costs” unde r the Act. Such costs were published within a few 

months af ter the date of enac tment of the statute. The time within which to 

applv for an adjustment has long since expired. All such applications have long 

ago been processed and there is no liti gation outstanding with respect to any 

of them.

One of the conditions th at any app licant for an adjus tment had to agree to 

was th at if the United States requ isitioned the use of his vessel during the 

nation al emergency declared by Pre sid ent Roosevelt on May 27, 1941, the compensatio n to be paid for such use would not exceed 15 percen t per annum of 

the fixed price at which the vessel would have been sold under the Merchant 

Shin Sales Act of 1946. This emergency was terminated by the Act of July 25, 

1947 (P.U. 239. 80th Congress : 61 St at. 449).

Section 9 of the M erchant Ship Sale s Act of 1946 Is now a nullity . It does not 

now provide autho rity to do anyth ing and no future proclama tion of a natio nal 

emergency would provide any au thority under it. Repeal of the section, therefore, 

is unrela ted to the purpose of H.R. 3884.

Sincerely,

Robert J. Blackwell, 

Assistan t Secretary for Maritim e Affairs.

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