first place, it is a lesson which seems to be enforced by our experience in the three great crises discussed in a previous chapter, that an emergency power of ordinance must upon occasion be exercised in some fashion by the Executive or at Teast by a legislative committee acting upon executive request." If such power is not given, or is given in too limited terms, it will be illegally exercised to the extent that this proves necessary.10 In such case resort must had to the act of indemnity. In countries like the United States, where such an emergency arises only about once in fifty years, it may be better not to give the President very extensive powers either by constitutional or statutory grant. For our legalistic tradition is strong enough to compel a usurping Executive to appeal to the Congress for retroactive delegation of power; our dislike of executive power is so great that a President will not dare attempt to turn such usurpation into a coup d'état. Unfortunately, perhaps, these safeguards are not as sure as they once were; for in recent decades there has been a weakening of respect in the American mind for law as such.

11

This is of course not an American method. But see Constitution of Czechoslovakia, art. 54, translated in McBain and Rogers, The New Constitutions of Europe (1922), pp. 310, 321-323.

10 The following quotations, from the interpreter of the constitutional aspects of the Civil War Period, Professor Dunning, are in point: This frank substitution of a 'popular demand' for a legal mandate, as a basis for executive action, is characteristic of the times. The President's course was approved and applauded. . . . The general concurrence in the avowed ignoring of the organic law emphasizes the completeness of the revolution which was in progress. The idea of a government limited by the written instructions of a past generation had already begun to grow dim in the smoke of battle" (Essays on the Civil War and Reconstruction, p. 18). “In the interval between April 12 and July 4, 1861, a new principle thus appeared in the constitutional system of the United States, namely, that of a temporary dictatorship. All the powers of government were virtually concentrated in a single department, and that the department whose energies were directed by the will of a single man " (p. 21). "To maintain that the framers of the Constitution contemplated vesting in any man or body of men the discretionary right to set aside any of its provisions, seems too much like judging the past in the light of the present. To believe that the nation could have been preserved without the exercise of such a discretionary power, invokes too severe a strain upon the reasoning faculties of the careful student of the times" (pp. 48-49).

11 See my discussion of this point in "The Emergency Ordinance: A Note on Executive Power," in Columbia Law Review, June, 1923.

Power to act in an emergency should be broad in scope, should in some cases be power to give manifestation to some original idea, if it is given in anticipation of possible future emergencies. In such case to limit the discretion of the Executive is to destroy the effectiveness of the power.12 Of course, if the delegation is made only after the particular emergency has arisen, the delegating authority may perhaps specify more details. Yet even then this course is dangerous. Delegation is needed in part for the reason that the legislature cannot anticipate developments of the situation. For it to try to do so means that it endangers quick and efficient handling of matters as they arise. This is so with respect to ordinances embodying material ordinances as well as those embodying material laws, both sorts being needed in emergencies.13

12 Where constitutions specifically provide for emergency ordinances, there are usually the provisos that such ordinances may be issued only when the legislature is not in session and must be submitted to the next session of that body (see Meyer-Anschütz, Lehrbuch des deutschen Staatsrechtes, p. 577; art. 63 of the Prussian Constitution of 1850; the present Constitution of the German Republic, art. 48, translated in McBain and Rogers, The New Constitutions of Europe, pp. 185-186). Only the second proviso is mentioned in this case. Both were contained in the provision of Denmark of 1866 (Black, The Relation of Executive Power to Legisla tion, p. 127). The same is true of the Japanese Constitution (art. viii; for a discussion of this power see Nakano, The Ordinance Power of the Japanese Emperor, chap. xiii), and of the Russian Constitution of the old régime (art. 45). Neither limitation was, however, imposed in Württemberg (Lowell, Governments and Parties in Continental Europe, vol. i, p. 341). In the Prussian provision (art. 63) the purposes of emergency ordinances are set forth as follows: only in case the maintenance of public safety or the relief of an extraordinary state of distress urgently requires it." The existence of this urgency is, of course, left to the discretion of the Executive. Cf. the wording of the Japanese and other provisions. The Japanese Emperor issues emergency ordinances "in the place of law."

13 See the Overman Act, discussed in chap. iv. Authorization of Verwaltungsverordnungen may become an emergency need in wartime, and that for several reasons: 1. It may be necessary to free the administrative services from some of the red tape necessitated by minute statutory regulation of their activities. 2. It may be needed to adjust an administrative system of the American type, where no bureaucracy has developed, to the sudden strain of war activities. 3. It may be requisite in order to allow flexibility in organization, so that the Executive can quickly make the changes

14

One final issue presents itself with respect to emergency ordinances. Should the power be given in the Constitution itself or be left to be delegated by the assembly? In this country the late war proved that we can depend upon Congress to give sufficient power for the Executive to conduct a war. In many governments the head of the state is given in the written constitution a general power of issuing emergency ordinances.15 Not so in the United States. Nor does there seem to be a real need for such a clause. It might, however, be wise for Congress to keep upon the statute books anticipatory delegations of emergency power in case of war or rebellion.16 Such permanent enactments should cover recognized types of power which it might be needful for the President to exercise in a great crisis.17 Other delegations might then be left until a particular case arose.

II

We may next consider the issuance by the Executive of formal ordinances which are also either ordinances or co

18

ordinances in the material sense of the terms.1 In general, it seems that the German conception that this is a proper executive function,19 that such ordinances are ordinances par

which experience shows to be needed; etc. Modern warfare is as much a matter of administration as of actual fighting.

14 The attitude of that body was summed up in the declaration (amidst applause) of Langley: "So if the President needs the weapons of autocracy in this war with autocratic Germany, I am in favor of giving them to him " (Congressional Record, vol. lv, part 4, p. 4019; cf. pp. 3802, 4899, 3951 ff., 3901, 4403 ff.).

15 See above, note 12.

16 Such as 39 Stat. L., 166 ff. (National Defense Act of 1916); 39 Stat. L., 645.

17 Such as, (1) the power to use the army and to call out the militia to put down rebellion or resist invasion (see the law which Lincoln cited as his authority for calling out the 75,000 militiamen in 1861, 1 Stat. L., 424, proclamation in 12 Stat. L., 1258; see Dunning, Essays on the Civil War and Reconstruction, chap. i); (2) the power to use the railroads or even to take them over in a war crisis (see the act passed in 1916 under which President Wilson took over the railroads, proclamation in 40 Stat. L., 1733); (3) the power to suspend the privilege of the writ of habeas corpus in case of war or rebellion; etc.

18 See definitions in chap. ii.

19 "Die Verwaltungsverordnungen sind ein Ausfluss des Verhält

excellence, 20 is partly justified.21 The head of the state, or the responsible ministry in parliamentary governments, may be expected to know better than the legislature what are the needs of organization and the needs of regulation of the several services whose function it is to carry out the will of the state as expressed in material law. Then, too, administration to be efficient must be flexible, and this is impossible if resort must be had to the legislature every time a slight change is to be made.22 We have seen that this fact is in part recognized by the delegation to departmental heads in the Revised Statutes of power to issue administrative regulations not inconsistent with law.25 23 But in practice Congress goes into such detail both in budgetary and other administrative control 24 that this delegation is more limited in scope than

nisses der Über- und Unterordnung, welches unter den Verwaltungsorganen besteht, und daher auch ohne spezielle gesetzliche Ernächtigung zulässig (Meyer-Anschütz, Lehrbuch des deutschen Staatsrechtes, pp. 571-572); "Ihre Schranke finden sich lediglich in den vorhandenen Gesetzen" (ibid., p. 572).

20 Laband, Deutsches Reichsstaatsrecht, sec. 16.

21 Cf. Mathews, "State Administrative Reorganization," in American Political Science Review, August, 1922.

22 Much of the time of Congress and our state legislatures is consumed with patching up the administrative system now in this detail, now in that. The average member is not competent to pass upon these matters. What is more in point, the committees that specialize in these subjects have to rely upon the advice of administrative officers. The result is simply a cumbersome and inefficient method of applying the knowledge which with the chief administrative officers is born of experience.

33 Sec. 161.

24 The present method of appropriating funds in Michigan offers a fruitful suggestion. Thus Act No. 300, Public Acts, 1921, appro priated for the Department of Agriculture for the fiscal year 19211922 a sum of $463,409.00, allocated to the following subjects: (1) personal service; (2) supplies; (3) contractual service; (4) maintenance of equipment; (5) outlay for equipment; (6) payment of premiums of State Fair. This law seems reasonably general, but it makes no provision for transfers from one title to another, probably because the titles are so broad. Then there is added a clause which gives a needed administrative control over the expenditure of the appropriation: "Provided, That all amounts appropriated under this act shall be subject to the approval of the State Administrative Board (sec. 5). Under the act of 1921 creating this Board, it is given supervisory control over all state departments (Public Acts, 1921, No. 2, sec. 3). Also, under the act of the same date creating the State Department of Agriculture (Act No. 13, Public Acts, 1921),

might appear from the general terms in which it is worded. In the emergency of war Congress had to pass an Overman Act to allow the President to redistribute functions and consolidate services as the needs of the crisis required. Professor Mathews has suggested that in the States the governors be given in a permanent form a similar emergency power, as well as broad discretion in administrative organization and regulation in ordinary times. It would seem that the President might also, subject to general laws of Congress and the -limits of the budget, be granted by the permanent law (not by constitutional provision) some such authority. In practice he would of course depend upon the head of each department to work out, subject to his approval, the details of such administrative regulations. It is hardly wise-as it is probably not constitutional-for Congress to delegate to the Chief Magistrate such full discretion in the premises in this matter as is given to the Emperor of Japan by the Japanese Constitution.25 Neither is the present situation necessary or desirable whereby the President and his cabinet members have insufficient power to issue ordinances in the material sense. It is true that they are not now entirely confined to coordinances; 26 but their power is all too meager as it is. It

the Commissioner of Agriculture is authorized to "appoint such assistants and employees as may be necessary to perform the duties hereby imposed, the number of such assistants and employees, and the compensation payable to all persons so appointed and employed, being subject to the approval of the State Administrative Board" (sec. 1). Sec. 5 provides that "All of the powers and duties imposed by this act on the State Department of Agriculture shall be exercised and performed under the supervisory control of the State Administrative Board." Under these several provisions of law there is a degree of flexibility plus administrative control. Incidentally, the State Administrative Board consists of the elective executive officers of the state (except the lieutenant governor), which does not insure harmony within the Board itself (Public Acts, 1921, No. 2, sec. 1).

25" The Emperor determines the organization of the different branches of the administration, and the salaries of all civil and military officers, and appoints and dismisses the same. Exceptions especially provided for in the present Constitution or in other laws, shall be in accordance with the respective provisions (bearing thereon)" (art. x; see also art. xii).

26

20 This is because Rev. Stat., sec. 161 is a blanket' clause, not a