nature of the case, be determined by the authority having full or almost full discretion in the premises. L The fourth and final basis of classification has to do with the question whether an ordinance is issued in connection with ordinary social and industrial problems or whether it is issued in connection with a special emergency.63 Ordinances of the latter type are called by German writers Notverordnungen. These are considered as a distinct category by reason of their political significance in relation to the preservation of security from external aggression and the safeguarding of internal order, as well as by reason of the special constitutional problems that are raised by governmental action in wartime or other times of crisis. With respect to ordinary ordinances the power is granted to the Executive because it is considered the proper sphere of the administration, or because the multiplicity and complexity of the problems of modern social and industrial life make it expedient or even necessary that at least the details be decided by a branch of government that is more efficient, more experienced, and better informed than a popular assembly can be. There the question is whether the Executive cannot deal with some matters more adequately or with readier adjustment than the legislature. But in the case of the Notverordnungsrecht the prime consideration is that the Executive can act more quickly than the legislature. The crisis may arise when the legislature is not in session, as happened at the outbreak of the War of Secession; or, if it be in session, its necessary slowness may cause a delay that will endanger the safety or vital interest of the state. In foreign relations, in war, and in internal crises of various sorts, the unpredictable character of the events and the necessity for quick action make it essential for the Executive to be given broad discretion and strong power to meet the many critical situations. Emer 63 See the author's article: "The Emergency Ordinance: A Note on Executive Power," in Columbia Law Review, June, 1923. This section of this treatise is a summary of that article. The term Notverordnungen as herein used includes emergency ordinances of all sorts. gency power of this kind may be opposed to the ideal of democracy, but it is none the less inevitable.65 64 Emergencies are of various sorts, as are also the methods of meeting them. A belligerent may unlawfully attack neutral commerce and travel; a foreign state may invade or otherwise commit acts of aggression against the nation; alien enemies may become a menace in time of war; and so on. In internal affairs, life and property may be placed in jeopardy through famine or flood; there may be armed riots of citizens against citizens, or of citizens against resident aliens; insurrections against law enforcement may take place; even rebellions against the established government itself may be set afoot. Hence we have the executive declaration of war 66 and of the state of siege; 67 executive suspension, in emergencies, of bills of rights; 68 executive discretion as to the use of military and naval forces in maintaining order and repelling invasions; 69 the power of the Executive to issue rules, within the limits of statutes, to provide for named contingencies; 70 and a general power granted to the Executive of issuing emergency ordinances.71 Most of these forms of action seem to embody ordinances. We may now summarize the five chief methods of providing in a governmental system for the issuance of emergency ordinances. In the first place the power to issue them may be delegated to the Executive in the constitution itself. This was done in the Austrian,72 Prussian," and Russian 74 See Burns, Political Ideals, pp. 294-295. 65 Cf. Stubbs, Constitutional History of England, vol. ii, p. 619. 66 Constitution of Japan, art. xiii. 67 Ibid., art. xiv. 68 Ibid., art. xxxi. 69 Martin v. Mott, 12 Wheat. 19. 70 See 40 Stat. L., passim. Also worthy of scrutiny in this connection are: 1 and 2 Stat. L., passim, and 12 and 13 Stat. L., passim. See examples cited in a later chapter. 71 Constitution of Japan, art. viii; See Ito, Commentaries, pp. 13-17. 7 Sec. 14, Staatsgrundgesetz über die Reichsvertretung, 12 Dec. 1867, R. G. B. 141. 73 Art. 63 of the Constitution of 1850. 74 Art. 45. constitutions of the old régime, as it is done in the constitution of Japan and other countries.75 There is, of course, no such provision in the Constitution of the United States. The second method is a modification of the first. It is the constitutional provision for ordinances not by the Executive but by a legislative committee at the instance of the Executive. The best illustration is in Article 54 of the constitution of Czechoslovakia.76 In the third place we have permanent statutes delegating to the Executive the power to meet crises, and in the fourth special and temporary laws for the same purpose. Usually Congress has waited for the emergency to arise instead of providing beforehand for possible occurrences. There are probably fewer constitutional difficulties in this method, because anticipatory delegation must often be broader than delegations relating to an existing situation. The method proved sufficiently efficient, also, in the War with Germany, because the enemy was remote and there was time for Congress to meet and debate and pass the necessary measures. Its inadequacy in a really critical situation was demonstrated at the outbreak of the War of Secession, when President Lincoln could preserve the Union only by taking action of doubtful legality without waiting for legislative authorization." However, a way out was found; and this brings us to the fifth and final method. That is, the bill of indemnity, which amounts to a sort of retroactive delegation. This procedure was developed in England," and was found convenient in the American Civil War. Congress passed an act "approving, legalizing, and making valid all acts, proclamations, and orders of the President, . . . as 75 For example, the constitution of Denmark of 1866; the new Constitution of the German Reich, art. 48, translated in McBain and Rogers, The New Constitutions of Europe (1922), pp. 185-186. See also Lowell, Governments and Parties in Continental Europe, vol. i, p. 341. 7 See McBain and Rogers, The New Constitutions of Europe, pp. 310, 321-323; cf. art. 55 of the new Prussian Constitution, in ibid., p. 226. "Dunning, Essays on the Civil War and Reconstruction, chap. 1. 78 Anson, Law and Custom of the Constitution, part i, pp. 263264; Dicey, Law of the Constitution, pp. 47-48, 228 ff. if they had been issued and done under the previous express authority and direction of the Congress of the United States." This was sanctioned by the Supreme Court in the Prize Cases 79 as a sound application to public law of the principle of agency that omnis ratihabitio retrotrahitur et mandato equiparatur. But of course Congress could not by such an act excuse subordinates of the President from the legal responsibility for enforcing unauthorized or illegal Presidential ordinances which Congress under the Constitution could not in the first place have authorized him to issue. This limitation does not, however, hold with reference to the British Parliament.80 Of these five methods the first, third, and fourth are also used with respect to ordinary ordinances, where there is no emergency. The first is authorized by a number of constitutions, and is implied in the French constitution.82 The President of the United States, on the other hand, has no constitutional ordinance making powers except such as may be involved in the so-called executive' powers which he is granted by the supreme law of the land. In other words, he is given by that instrument ordinance making powers as such neither with reference to emergencies nor with reference to ordinary problems. Let us now mention examples of both emergency and ordinary ordinances of the President. In a sense at least the proclamation of President Wilson directing the taking over of Dutch vessels may be termed an emergency proclamation. That proclamation read in part: 83 Whereas, the law and practice of nations accords to a belligerent power the right in times of military exigency and for purposes essential to the prosecution of war, to take over and utilize neutral vessels lying within its jurisdiction: And whereas the act of Congress of June 15, 1917, entitled “An " Dicey, Law of the Constitution, pp. 47-48, 228 ff. 79 2 Black 635. 1 See the Constitution of Italy, art. 6. 82 Constitutional Law on the Organization of the Public Powers, February 25, 1875, art. iii; see Duguit, Droit constitutionnel, sec. 141. 83 40 Stat. L., part 2, 1761. act to, etc.," confers upon the President power to take over the possession of any vessel within the jurisdiction of the United States for use or operation by the United States: Now, therefore, I, Woodrow Wilson, President of the United States of America, in accordance with international law and practice and by virtue of the act of Congress aforesaid, and as Commander in Chief of the Army and Navy of the United States, do hereby find and proclaim that the imperative military needs of the United States require the immediate utilization of vessels of Netherlands registry, now lying within the territorial waters of the United States; and I do therefore authorize and empower the Secretary of the Navy to take over on behalf of the United States the possession of and to employ all such vessels of Netherlands registry as may be necessary for essential purposes connected with the prosecution of the war against the Imperial German Government. The vessels shall be manned, equipped, and operated by the Navy Department and the United States Shipping Board, as may be deemed expedient; and the United States Shipping Board shall make to the owners thereof full compensation, in accordance with the principles of international law. . . . Another example may be found in the proclamation of February 14, 1918, concerning exports from the United States, from which we quote: 84 Whereas, Congress has enacted, and the President has on the 15th day of June, 1917, approved a law which contains the following provisions: "Whenever during the present war the President shall find that the public safety shall so require, and shall make proclamation thereof, it shall be unlawful to export from or ship from or take out of the United States to any country named in such proclamation any article or articles mentioned in such proclamation, except at such time or times, and under such regulations and orders, and subject to such limitations and exceptions as the President shall prescribe, until otherwise ordered by the President or by Congress; provided, however, that no preference shall be given to the ports of one State over those of another." And, whereas, the President has heretofore by proclamations dated July 9, 1917, September 7, 1917, and November 28, 1917, declared certain exports in time of war unlawful, and the President now finds that the public safety requires that such proclamations be amended and supplemented in respect to the articles and countries hereinafter mentioned; Now, therefore, I, Woodrow Wilson, President of the United States of America, do hereby proclaim to all whom it may concern that the public safety requires that the following articles, namely: .. and all other articles of any kind whatsoever shall not, on and after the 16th day of February, in the year 1918, be exported from, or shipped from, or taken out of the United States or its Territorial possessions to except under license granted in 84 Ibid., 1746-1747. . |