Article II, Section 2, Clause 1:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

The end of active hostilities did not terminate either the emergency or the Federal Government’s response to it. President Harry Truman proclaimed the termination of hostilities on December 31, 1946,1 and, in July 1947, Congress enacted a joint resolution that repealed a great variety of wartime statutes and set termination dates for others.2 Signing the resolution, the President said that the emergencies declared in 1939 and 1940 continued to exist and that it was “not possible at this time to provide for terminating all war and emergency powers.” 3 The hot war was giving way to the Cold War.

The postwar period was a time of reaction against the wartime exercise of power by President Franklin Roosevelt, and President Truman was not permitted the same liberties. The Supreme Court signaled this reaction when it struck down the President’s action in seizing the steel industry while it was struck during the Korean War.4

Nonetheless, the long period of the Cold War and of active hostilities in Korea and Indochina, in addition to the issue of the use of troops in the absence of congressional authorization, further created conditions for consolidation of powers in the President. In particular, a string of declarations of national emergencies, most, in whole or part, under the Trading with the Enemy Act,5 undergirded the exercise of much presidential power. In the storm of response to the Vietnamese conflict, here, too, Congress reasserted legislative power to curtail what it viewed as excessive executive power, limiting the Trading with the Enemy Act to wartime and enacting the International Emergency Economic Powers Act,6 which delegated most of the same range of powers to the President, but which changed the scope of the power delegated to declare national emergencies.7 Congress also passed the National Emergencies Act,8 prescribing procedures for the declaration of national emergencies, for their termination, and for presidential reporting to Congress in connection with national emergencies. To end the practice of declaring national emergencies for an indefinite duration, Congress provided that any emergency not otherwise terminated would expire one year after its declaration unless the President published in the Federal Register and transmitted to Congress a notice that the emergency would continue in effect.9

Footnotes

1

Proc. 2714, 12 Fed. Reg. 1 (1947).

2

S.J. Res. 123, 61 Stat. 449 (1947).

3

Woods v. Cloyd W. Miller Co., 333 U.S. 138, 140 n.3 (1948).

4

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). The majority stated, “Even though ‘theater of war’ be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production.” Id. at 587.

5

First War Powers Act § 301(1), 55 Stat. 838, 839–840 (1941) (amending of the Trading with the Enemy Act of 1917, Pub. L. No. 65-91, § 5, 40 Stat. 411 (codified as amended at 50 U.S.C. § 4305).

6

Pub. L. No. 95-223, 91 Stat. 1626 (1977) (codified as amended at 50 U.S.C. §§ 1701–1706).

7

Congress authorized the declaration of a national emergency based only on “any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or the economy of the United States.” 50 U.S.C. § 1701.

8

Pub. L. No. 94-412, 90 Stat. 1255 (1976)(codified as amended at 50 U.S.C. §§ 1601–1651).

9

50 U.S.C. § 1622.