Evening star., 1940-09-03
Text Of Opinion Authority to Negotiate for British Bases

find nothing that would indicate
that the Congress has tried to limit
the Presidents plenary powers to
vessels already stricken from the
naval registry. The President, of
course, would exercise his powers
only under the high sense of re-
sponsibility which follows his rank
as commander in chief of his Ma
ti0n'S defense forces.
Furthermore. I find in no other
statute or in the decisions any at
tempted limitations upon the plen-
airy powers of the President as
commander in chief of the Army
and Navy and as the head of the
State in its relations with foreign
countries to enter into the propc sed
arrangements for the transfer to the
British government of certain over
age deStroyerS and obsolescent mill
tary material except the limitations
recently imposed by section IA (aI
of the act of June %, 1910 Public
No. 67D. This section. it will be
noted, clearly recognizes the au-
thority to make transfers and seeks
only to impose certain restrictions
thereon. The section reads as fol-
lows.
Sec. IA. (a) Notwithstanding the
provision of any other law, no mill
tary or naval weapon. ship, boat, air
craft. munitions, supplies or equip
ment, to which the United States
has title, in whole or in part. or
which have been contracted for,
shall hereafter be transferred, ex-
changed, sold, or otherwise disposed
of in any manner whatsoever unless
the chief of naval operations in the
case of naval material, and the chief
of staff of the Army in the case of
military material, shall first certify
that such material is not essential to
the defense of the United States"
Thus to prohibit action by the
constitutionally created commander
in chief except upon authorization
OF statutory officer subordinate in
rank is of questionable constitution
ality. However, since the statute re-
quires certification only of matters
as to which you would wish, ire
spective of the statute, to be salts
fled, and as the legislative history of
the section indicates that no arbi-
trary restriction is intended, it seems
unnecessary to raise the question of
conStitutionality which such a pro-
vision would otherwise invite.
- Stricken From Register.
1 am Informed that the deStroyers
involved here are the survivors of
feet of over 100 built at about
the same time and under the same
design. During the year 1890. So
| of these were decommissioned with
view toward scrapping and a cor
responding number were recommis-
stoned as requirements. Usable
material and equipment from the
! So vessels removed from the service
were transferred to the recommis-
| stoned vessels to recondition and
modernize them and other usable
material and equipment were re-
moved and the vessels stripped.
They were then stricken from the
Navy register and so of them were
sold as scrap for prices ranging
from $3.50 to $4,000 per vessel, and
the remaining eight were used for
such purposes as target vessels, ex-
perimental construction tests and
temporary barracks. The surviving
deStroyers now under consideration
| have been reconditioned and are in
service, but all of them are over
age, most of them by several years
In constituting this statute in its
application to such a situation it is
important to note that this subsection
as originally proposed in the Senate
bill provided that the appropriate
staff officer shall first certify that
such material is not essential to
and cannot be used in the defense
of the United States" Senator
Barkley and others objected to the
subsection as so worded on the
ground that it would prevent the
release and exchange of surplus or
used planes and other supplies for
sale to the British and that it would
consequently nullify the provisions
of the bill (see section 1 of the act
of July 2, 1910, H R. $3.50, Public No.
703) which the Senate had passed
several. days earlier for that very
purpose. Although Senator Walsh
stated that he did not think the pro-
posed subsection had that effect, he
agreed to strike out the words land
cannot be used" Senator Barkley
observed that he thought the modi-
fled language provided "a much
more elastic term" Senator Walsh
further stated that he would bear
in mind in conference the views OF
Senator Barkley and others, and
that he had mo desire or purpose
to go beyond the present law, but
to have some certificate filed as to
whether the property is surplus or
not" Gong. Rec, June 81, 1910, PIP.
13370-13371)
Intent of Congress.
In view of this legislative history
it is clear that the Congress did not
intend to prevent the certification