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Copyright (c) 2000 Suffolk University
Suffolk University Law Review


33 Suffolk U. L. Rev. 259

LENGTH: 15385 words

ARTICLE: Government by Permanent Emergency: The Forgotten History of the New Deal Constitution

NAME: Roger I. Roots +


+ For Suffolk University Law School and the Suffolk Lawyers Guild: Fourth Annual Academic Convocation for Law Students.

... First, this Article examines the history and effect of the national emergency that President Roosevelt and the New Deal Congress of 1933 declared in America and its eventual impact upon American constitutional law. ... Presidents from Thomas Jefferson to Andrew Jackson to Theodore Roosevelt alluded to this emergency doctrine. ... For instance, one federal district judge upheld certain NRA operations by holding that the national emergency "'may also have the effect of rendering a transaction which in normal times would have only an indirect, incidental, and insignificant effect on interstate commerce, a matter of great moment and of powerful effect in times of great emergency.'" The emergency doctrine analysis addition to commerce arguments, however, fell on deaf ears in other federal courtrooms. ... Opposing lawyers were somewhat slow to challenge the NRA's constitutional shortcomings, primarily because of the Roosevelt Administration's justification that the act responded to a national emergency. ... The impact of Roosevelt's national emergency decree upon the war power is often ignored. ... On March 23, 1970, President Nixon declared a national emergency to confront a strike by U.S. Postal Service employees. ... While modern, federal case law is devoid of emergency power jurisprudence, an unstated recognition of national emergency powers expansion remains an intractable and viable factor in today's constitutional whole. ...  

HIGHLIGHT: "We have long since discovered that nothing lasts longer than a temporary government program." n1

 [*259]  I. ABSTRACT

The New Deal Court of the late 1930s and 1940s rewrote American constitutional law regarding the scope of national power within the states. Historically, legal analysts have exhaustively reviewed the impact and aftermath of this alteration. n2 Left largely unacknowledged, however, is the fact that many of these reforms were originally promoted as temporary "emergency" measures intended to counteract the Great Depression. n3 After the Depression ended, however, the expanded federal powers, invoked under the New Deal emergency decree and upheld by the United States Supreme Court, remained intact. A radically altered form of American government, without  [*260]  retreat to its former state, resulted.

President Franklin Delano Roosevelt grounded the New Deal reforms in his powers as Commander-in-Chief and justified their extra-constitutionality under war powers jurisprudence. In effect, the executive branch sought and was granted the power to wage a war on American soil; a war against the invisible and intangible enemy of economic depression and injustice. This war never officially ended, however, and the expansion of the federal government in the 1930s and 1940s became entrenched by the mid-twentieth century. This Article argues that Court rulings interpreting the post-New Deal federal expansion as a mere extension of the Commerce, Tax, and Spending Clauses of the Constitution of the United States are incomplete, unless they include the emergency factor upon which the New Deal reforms were expressly based.

First, this Article examines the history and effect of the national emergency that President Roosevelt and the New Deal Congress of 1933 declared in America and its eventual impact upon American constitutional law. Further, this Article discusses the evolution of the loosely defined and historically hazy Emergency Powers Doctrine, from a perspective that is both doubtful of its constitutionality and critical of its practical implications. Finally, this Article asserts that the post-New Deal expansions of federal power, popularly thought to have been based on liberal interpretations of the Commerce, Tax, and Spending Clauses of the United States Constitution, ultimately derive credence from the federal government's unstated assumption of permanent emergency operations.


On March 4, 1933, the American public directed its attention to a rain-pelted podium outside the east wing of the Capitol where newly elected President Roosevelt addressed an anxious nation. n4 The President's inauguration, however, was overshadowed by an immense economic crisis. Virtually every bank in the country had closed due to the widespread panic, poverty, and homelessness gripping the nation, and pleas for reform came from every direction. n5 Roosevelt, elected to office with 57.4% of the popular vote, brought with him ninety-seven new Democrats into the House of Representatives and twelve new Democrats into the Senate, and intended to end more than a decade of Republican presidencies with his revolutionary reforms of a grand scale. n6 The imminent economic collapse set the stage for "masterful presidential  [*261]  action." n7

Although Roosevelt's inaugural address reflected ambitious goals, the language was vague and cryptic. n8 The President announced:

I am prepared under my constitutional duty to recommend the measures that a stricken Nation in the midst of a stricken world may require. These measures, or such other measures as the Congress may build out of its experience and wisdom, I shall seek, within my constitutional authority, to bring to speedy adoption.

But in the event that the Congress shall fail to take one of these two courses, and in the event that the national emergency is still critical, I shall not evade the clear course of duty that will then confront me. I shall ask the Congress for the one remaining instrument to meet the crises - broad Executive power to wage a war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe. n9

These words not only expressed an intention to recommend measures to Congress, but also promised to wage a war against the economic crisis by asserting broad executive power in the event of Congress' failure to enact the appropriate legislation. n10

A. Emergency Declared

Immediately following Roosevelt's inauguration, his administration demonstrated that his inaugural reference to "waging a war against emergency" was hardly a metaphor, and that he, as Commander-in-Chief, intended to invoke his executive powers to end the Great Depression. On March 5, 1933, the President issued Proclamation 2038, calling for a special session of Congress to convene. n11 The following day, he called a governors conference in which he pursuaded the states' governors to pass a resolution pledging their respective state's support for the emergency measures that the President might undertake to correct the nation's economy. n12

 [*262]  Roosevelt proclaimed a banking "holiday" from Monday, March 6, 1933, through Thursday, March 9, 1933. n13 The holiday, however, was not a holiday in the traditional sense, but rather a federal order for all banks of the nation to close, including banks in those states where no federal relationship existed. The order prohibited gold owners from withdrawing gold from banks and included fines of not more than $ 10,000 and imprisonment of ten years. n14 The ramifications of such federal coercion met with little opposition in the political realm, owing both to the overall excitement of the moment and the resounding majority in support of Roosevelt in Congress.

B. Constitutional Departure

President Roosevelt's emergency measures departed from the structural norm of the Constitution, not only changing the relationship between executive and legislative authority, n15 but also rejecting the laissez faire traditions of American economic policy and legal jurisprudence. n16 After the President demanded the four-day business closure of every bank in America and the confiscation of all privately held gold, he then forced the production of all  [*263]  financial banking information upon the government's demand. n17 The President commandeered this massive change of the banking structure pursuant to Section 5(b) of the Act of October 6, 1917, n18 otherwise known, but not referred to by the President, as the Trading with the Enemy Act. n19 This statute, regulating the affairs of foreign-national non-citizens, was enacted and implemented during World War I, but subsequently suspended at the war's end. Nevertheless, Roosevelt's decree aimed to "proclaim, order, direct and declare" sweeping measures within the domestic domain of the United States; the order applied not only to foreign nationals but American citizens and financial institutions that were under no federal regulation. n20

President Roosevelt's actions, of course, clearly violated myriad provisions of the Constitution, including the Commerce Clause, n21 the Fourth Amendment, n22 the Due Process Clause of the Fifth Amendment, n23 the Takings Clause of the Fifth Amendment, n24 and the Tenth Amendment, n25 as well as other  [*264]  protections delineated in the text and amendments of the Constitution. n26 Additionally, the President's order clearly violated the separation of powers doctrine n27 and, even if approved by Congress, the non-delegation doctrine. n28 Roosevelt relied on the proposition that by grounding such extra-constitutional measures in his powers as Commander-in-Chief, the measures would pass constitutional muster. n29 The President conspicuously placed military leaders in charge of New Deal programs, n30 and peppered his actions and statements with metaphors that played on the "depression as war" theme. n31 Although no truly  [*265]  tangible "enemy" was evident, the President seized upon the public's popular distrust of the banking establishment, announcing that he sought to thwart the practices of unscrupulous "moneychangers." n32

On March 8, 1933, only three days after the inaugural decree, the Federal Reserve Board asked banks to list people who had recently withdrawn gold or gold certificates and did not re-deposit them by March 13, 1933. n33 The request was widely disseminated in the newspapers of the period, and Roosevelt himself announced that the names would be published. n34 On March 9, 1933, with the emergency special session of Congress commencing activities, Roosevelt issued Proclamation 2040, extending the emergency beyond the March 9th deadline and stating all earlier provisions were "hereby continued in full force and effect until further proclamation by the President." n35 The President's efforts to intervene in the economy were either too outlandish to justify a response or too popular to draw any intense conflict with those in the legislative and judicial branches. Perhaps Roosevelt's own political divinity saved many New Deal measures from attack.


The authority underlying President Roosevelt's spree of presidential "lawmaking" had been of highly questionable authenticity. n36 In fact, most of those affected by such acts, including heavily targeted banks, were uncertain whether or not to consider the emergency measures to have the weight of law and abide by them. n37 Since federal legislative power is vested in Congress, the emergency measures announced without congressional approval were presumptively invalid. n38

On the evening of March 9, 1933, with Congress hastily assembled, the President delivered to the floor of both houses a single copy of his emergency banking bill. Since there was no time to print copies of the bill, it was simply read to the assemblies upon its introduction. At 8:30 p.m., Congress hurriedly put the President's proposal to a vote and overwhelmingly passed it. n39 The vote was taken when every bank in the country had been closed for four straight days, and there was enormous pressure on Congress to allow the banks to open. Unable to justify a delay to debate, several congressmen were pressured to pass the bill even though they opposed many of its provisions. n40 Due to the short period of time prior to the enactment, some congressmen's votes were not recognized and there was no roll call vote allowed in the House. n41 To this day,  [*267]  the legislative intent behind the bill remains unclear. n42

The Emergency Banking Act n43 provided the President with the authority to take any measure he deemed necessary to resolve the banking crisis. In granting the President such wide latitude of power, it appears Congress followed his "recommendations" and granted Roosevelt the quasi-war power he announced that he would have sought in the event Congress failed to enact his measures. Many people felt the enactment of the Emergency Banking Act allowed Roosevelt to wage war on American soil against an invisible and intangible enemy. n44

Upon virtually newly plowed earth, n45 Congress confirmed that the  [*268]  President's actions and the Secretary of Treasury's actions since March 4th, 1933, (five days earlier) were "ratified" with congressional approval. The Roosevelt Administration was given power to require people to turn in their gold and gold certificates, on penalty of imprisonment or fine. In fact, the ink had not yet dried on the newspaper accounts of the President's inaugural address before Congress enacted his quasi-war measures into law, and granted his inaugural request for broad executive power to wage a war against emergency. This authority was as great as the power that would have been given him if the nation were in fact invaded by a foreign foe. n46

There is little question that but for Congress' alleged ratification of President Roosevelt's actions in the four days preceding the opening of Congress' emergency session, the emergency banking measures would have been struck down as indisputably beyond the scope of executive power. n47 Even with subsequent ratification by the legislative branch, however, the declaration of national emergency and its accompanying expansion of federal power into extra-federal domain remained an action of questionable constitutionality. The Emergency Banking Act's preamble affirmatively stated: "Be it enacted . . . that the Congress hereby declares that a serious emergency exists and that it is imperatively necessary speedily to put into effect remedies of uniform national  [*269]  application." n48


Two propositions implicitly follow from President Roosevelt's declaring that the Great Depression was a national emergency; first, the Executive Office was no longer confined to its duty to merely "take care that the laws be faithfully executed" n49 and second, the federal government as a whole was no longer confined to the powers provided to it by a strict interpretation of the Constitution with regard to federalism concerns and civil liberties. The Constitution, however, does not provide support for these propositions. In fact, the only constitutional provisions that can be read to imply such an expansion of federal powers are the Constitution's rather ambiguous provisions of empowerment during times of war.

Regardless of its absence from the Constitution itself, it is a long-held belief that an implicit "emergency powers doctrine" exists somewhere within the doctrinal framework of the Constitution. n50 Emergency powers have allegedly derived from natural law, sovereign tradition, n51 or some other undefined source. n52 Presidents from Thomas Jefferson n53 to Andrew Jackson n54 to  [*270]  Theodore Roosevelt n55 alluded to this emergency doctrine. n56 The doctrine has weaved in and out of American history since the era of the Alien and Sedition Acts.

Proponents of the doctrine argue that during an emergency, the people can not hold the national government to the strict constitutional constraints that otherwise bind it; similarly, the law does not hold a motorist liable in the heat of an emergency for injuring third persons so long as due care is used in the unusual circumstances. n57 Emergency theorists point to numerous historical  [*271]  instances where the executive branch has used extra-constitutional powers to quell mine riots, put down regional rebellions, and deal with exigent domestic developments. n58 While the Constitution under normal circumstances places stringent limitations upon the federal Executive, this implied emergency power allegedly works to relax constitutional limitations during times of national strife. For their part, proponents of the emergency powers doctrine have tended to place its constitutional source somewhere within the war power provisions of the Constitution, positing that emergency is a subset of war, or that "war" itself means emergency. Yet, even the most religious proponents of the emergency doctrine have had difficulty showing how the Constitution contemplates its operation in the utter and total absence of war. n59 Roosevelt's crisis regime was, in essence, a quest for "a doctrine that analogized the Depression to a wartime battlefield." n60

When war is declared by Congress pursuant to Article I, Section 8, Clause 11 of the Constitution, the President, in the role personified by George Washington, is expected to carry out the execution of the war until its cessation. Using the powers of the Commander-in-Chief, the President is transformed from a mere enforcer of congressional enactment into an independent source of national leadership, with sufficient lawmaking power to act in any way consistent with winning the conflict. Issued pursuant to a war declaration, acts of Congress are likewise held to an absurdly low standard of validity by the courts. n61 Why not, ask emergency power proponents, extend such endowments into non-war settings as long as Congress approves? And why not permit Congress to declare war at any time, or at any thing, real or imaginary?

The Framers intended the President to have the ability to act defensively during military attacks and invasions at times when Congress could not gather  [*272]  in session. n62 This window of constitutional opportunity provides the President with authority to act as temporary dictator at times of strife and national immediacy. President Roosevelt's window, however, became a barn door through which the President intended to drive the industrial and labor resources of the United States under the very watch of Congress and the courts. Roosevelt's administration played the emergency card at virtually every opportunity, n63 alleging that the emergency doctrine allowed for virtually limitless action by the President during a national crisis. n64

President Abraham Lincoln's expansion of domestic executive war powers prior to and during the War Between the States was the only precedent in American history even remotely resembling these events. Shortly after the fall of Fort Sumter in 1861, President Lincoln called 75,000 militiamen and 42,000 volunteers into federal service, all without a congressional declaration of war. n65 Lincoln's action, unprecedented at the time, n66 would become familiar a century later when presidents Eisenhower, Kennedy, Johnson, Nixon, Reagan, Bush, and Clinton all committed U.S. military troops to foreign soil without any congressional approval whatsoever. n67


Allowing for the existence of an emergency power while not in a war setting, or referring to critical domestic events themselves as war, poses a  [*273]  number of problems. War, after all, is a specific set of circumstances. Scholars and courts define war in various ways: "that state in which a nation prosecutes its right by force;" n68 the "hostile contention by means of armed forces, carried on between nations, states, or rulers, or between citizens in the same nation or state; n69 or "the state of nations among whom there is an interruption of pacific relations, and a general contention by force, authorized by the sovereign." n70 One serious distinction the emergency doctrine fails to consider, however, is that war is a contest between sovereigns, or at least between a sovereign and an entity claiming rights as a sovereign, such as in the case of a civil war.

Furthermore, a war suggests its own peculiar protocol. n71 During war, all citizens of an opponent country are enemies. n72 Property found in this territory is enemy property, subject to capture and seizure by the conquering government. n73 Such capture or seizure by military agents is not remediable by suit for trespass at common law even if in error. n74 In a war between sovereigns:

The people of the two countries become immediately the enemies of each other - all intercourse commercial or otherwise between them unlawful - all contracts existing at the commencement of the war suspended, and all made during its existence utterly void. The insurance of enemies' property, the drawing of bills of exchange or purchase on the enemies' country, the remission of bills or money to it are illegal and void. Existing partnerships between citizens or subjects of the two countries are dissolved, and, in fine, interdiction of trade and intercourse direct or indirect is absolute and complete by the mere force and effect of war itself. All the property of the people of the two countries on land or sea are subject to capture and confiscation by the adverse party as enemies' property, with certain qualifications as it respects property on land, all treaties between the belligerent parties are annulled. The ports of the respective countries may be blockaded, and letters of marque and reprisal granted as rights of war, and the law of prizes as defined by the law of nations comes into full and complete operation, resulting from maritime captures, jure belli. War also  [*274]  effects a change in the mutual relations of all States or countries, not directly, as in the case of the belligerents, but immediately and indirectly, though they take no part in the contest, but remain neutral. n75

This protocol of war encompasses a set of military, as opposed to civil, rules. To superimpose such a military code upon the American people tests the very existence of lawful, limited government. While war brings expanded powers, which would not exist except in war, it has never been clearly determined exactly what, if any, are the bounds of the war power. n76

A. Is Domestic Emergency Akin to Civil War?

If the national government's war power contains within it an unstated emergency power that the president may wield domestically in time of national strife, is this akin to the exercise of domestic war powers during civil war? Here again, the analogies seem highly fanciful. n77 "War" in such a domestic context exists when parties in rebellion occupy and hold in a hostile manner any territory, declare their independence, cast off their allegiance, organize armies, and commence hostilities against their former sovereign. n78 Even an economic crisis of staggering proportions cannot possibly rise to the level of such a turning point. Supreme Court Justice Grier, in The Brig Amy Warwick, articulated the view that the true test of whether civil war exists is whether the "regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the Courts of Justice cannot be kept open." n79

Thus, a startling problem exists when such a state is compared to the conditions of The Great Depression. The United States was by no means suffering from a collapse of civil law or government, as all three branches of the national government remained operational.

The laws of war, as established among nations, have their foundation in reason, and all tend to mitigate the cruelties and misery produced by the scourge of war. Hence the parties to a civil war usually concede to each other belligerent  [*275]  rights. They exchange prisoners, and adopt the other courtesies and rules common to public or national wars. n80

Thus, the belligerents in war maintain equilibrium of value whereas no such equilibrium exists when the government is administering controls upon a population without recognizing any limiting authority. The choice of the war power as a basis for emergency actions is difficult to reconcile with the text and context of the Constitution. Proponents of these expanded federal powers may have to look elsewhere in the Constitution for such justification. n81

B. War Doctrine Remains Unsettled

American war power jurisprudence has yet to be organized into a definitive set of rules. The Constitution's drafters designed the powers of war deliberately, in an effort to correct an apparent flaw in the Articles of Confederation. n82 The Framers of the Constitution divided the national war powers between the executive and legislative branches. n83 Many authorities fear the potential for the Executive branch, to edge, over time, toward dictatorship and ultimately impose martial law. n84 Supreme Court Justice Robert Jackson, in  [*276]  his concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, n85 reasoned that "comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country." n86

Over the course of American history, debates have been waged over the appropriate role that each branch of the government should play in wartime. n87 This conflict of interpretation between the branches reached a feverous pitch during the Vietnam Conflict when Congress enacted the War Powers Resolution over President Richard M. Nixon's veto. The political and constitutional aftermath of the War Powers Resolution was so vague that it forced Congress to hold hearings for a decade, none of which definitively settled the issue. n88 Even the drafters of the War Powers Resolution admitted it was intended as a mere buffer, requiring the President to submit to the authority of Congress within a given time after committing American troops to a battlefield. Virtually every authority believed that Congress' power to declare war had been lost to the Executive office over time. n89

If the constitutional rules of war are themselves unsettled after 220 years, the bounds of the emergency doctrine, indeed its very existence, remains entirely indeterminable. The Supreme Court has only rarely addressed in dicta whether an emergency constitutes an exception to the balance of powers enunciated in the Constitution. n90 Black's Law Dictionary defines a national emergency as a  [*277]  "state of national crisis: a situation demanding immediate and extraordinary national or federal action." n91 If, however, extraordinary connotes extraconstitutional, then there is no authority for "immediate and extraordinary national or federal action" in the text of the Constitution. Mr. Carlisle of Washington City, attorney for the claimants in The Brig Amy Warwick, expressed it well:

The Constitution knows no such word [necessity]. When it pronounced its purpose "to form a more perfect Union, establish justice, secure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity," it declared that to these ends the people did "ordain and establish this Constitution." In this form, and by these means, and by this distribution of powers, and not otherwise, did they provide for these ends; and they excluded all others. Any other means and powers are not Constitutional, but revolutionary. n92


Returning to Roosevelt's declaration of a national emergency in 1933, it has escaped the attention of all but the shrewdest of scholars that Congress granted the President his extraordinary emergency powers under a deceptive pretext. When Congress convened on March 9, 1933, to pass Roosevelt's emergency banking bill, Congress had little idea of the powers it was invoking. The bill's drafters took care to refer to their legislation as an amendment to the "Act of October 6, 1917," and avoid mentioning its proper name, the Trading With the Enemy Act.

President Roosevelt's earlier proclamation and actions had been expressly based on the authority granted him by the 1917 Act, as it existed before the 1933 amendment. n93 Yet the original 1917 Act had authorized no such conduct by the President. Roosevelt offered the pretense that "extensive speculative activity abroad in foreign exchange" which, together with domestic hoarding, had resulted in "severe drains on the nation's stocks of gold." n94 This was done because unless some foreign impact was alleged, the Act could not apply even if a "war" nexus could be postulated.

As an example of President Roosevelt's deception in his justification of peacetime war measures, his Proclamation 2039 began with the claim:  [*278]  "Whereas there have been heavy and unwarranted withdrawals of gold and currency from our banking institutions for the purpose of hoarding . . . ." n95 Dr. Eugene Schroder, a harsh critic of the emergency doctrine, pointed out the inherent deception that such a statement relied on. n96 The people who deposited the gold in the first place had been issued contractual certificates stating that they could have their gold whenever the certificates were presented. n97 Yet, the proclamation claimed the withdrawals were unwarranted and for the purpose of hoarding. n98 Realistically, constitutionally protected property rights afford owners the right to "hoard" their gold. Under the Emergency Banking Act, however, the banks were let out of their contractual obligations to return the gold to the rightful owners upon demand. n99


The provisions of the original 1917 Trading With the Enemy Act allowing for infringements on civil liberties were expressly directed only at persons other than citizens of the United States. In effect, the federal government assumed total authority over such non-citizen enemy aliens in every way through the Act of 1917. n100 But with the Emergency Banking Act, American citizens and their transactions were no longer exempt. n101 By surreptitiously extending World War I-era legislation aimed at foreign nationals to citizens in peacetime, the federal government placed the American people and their transactions in the same category as "enemies." A faithful interpretation of the amalgamation of the two acts can yield no other conclusion: On March 9, 1933, the Congress of the United States declared the American people to be the enemy.

Under the new act, the Roosevelt Administration could freely seize the bank  [*279]  accounts of any citizen without warrant and demand any citizen to produce accounting records. Roosevelt and his closely held Congress followed the Emergency Banking Act with an entire series of federal legislation designed to regulate and control virtually every aspect of the American economy. Within the first hundred days of emergency rule came such measures as the National Industrial Recovery Act, the Agricultural Adjustment Act, and the Bituminous Coal Conservation Act. Each of these acts involved the nationalization of large sectors of the American economy, under constitutional pretexts that were considered fanciful under the precedents of the time.

For all practical purposes, the Roosevelt Administration and the Roosevelt Congress acted as a single cohesive unit. n102 The 1932 landslide election had swept an unprecedented 310 Democrats into the House, leaving only 117 Republicans, and reduced the number of Republicans in the Senate from 56 to 35. n103 Moreover, the elections of 1934 removed another fourteen Republicans from the House and an additional ten from the Senate. n104 The presence of so many new lawmakers, who owed their political existence to Roosevelt, made the idea of a congressional check on the executive branch a virtual farce. Those who sought to restrain the government from overreaching could only look to the judicial branch.


It was not long before a significant number of constitutional challenges made their way to the courts. n105 Only a handful of issues arising out of Roosevelt's emergency decree, however, were given exhaustive review by federal appellate courts. In 1934 and 1935, after a year of emergency rule, the first challenges reached the Supreme Court. The first case involving the constitutionality of the "emergency" rule involved a Minnesota state law, patterned after the federal Emergency Farm Mortgage Act, that extended deadlines of mortgages. In Home Building & Loan Ass'n v. Blaisdell, n106 the Court brushed aside a due process property right challenge by claiming that "while emergency does not create power, emergency may furnish the occasion for the exercise of power." n107

Although subject to a variety of interpretations, this cryptic holding provided  [*280]  an immense boost to proponents of the emergency powers doctrine. The State of Minnesota had declared an emergency and taken over much of the state's economy. n108 The "hands off" proclamation by the national government in Blaisdell virtually assured the legitimacy of emergency power, at least with regard to acts of state governments within their own states. n109

Again, in Nebbia v. New York, n110 the Court upheld New York's emergency milk price controls from a similar Fourteenth Amendment challenge. Like Blaisdell, Nebbia can be interpreted in a variety of ways. n111 Yet, most observers viewed it as an unprecedented expansion of governmental power to regulate economic concerns in times of economic distress. n112 While the emergency backdrop of the latter decision was barely touched, n113 most observers saw Nebbia as an affirmation of the emergency powers doctrine. n114

Today, scholars often brand the Supreme Court of the early New Deal years as conservative in nature and hostile to President Roosevelt's programs. The Blaisdell and Nebbia Courts, however, delivered surprisingly favorable reports. These decisions represented a stark turn in the Supreme Court's previous hostility toward state laws that interfered with free market contract rights. n115

 [*281]  A. Emergency and the Loss of the Gold Standard

The first major Supreme Court challenge to President Roosevelt's emergency decree came only a year into the declared state of national emergency. In the Court's October 1934 term, it considered four challenges to the emergency banking act in what became known as the Gold Clause Cases. n116 Each case involved issues relating to whether Congress' destruction of gold clauses n117 passed constitutional muster under the Fifth and Tenth Amendments, as well as Article I, Section 1 of the Constitution. n118 The gold or silver  [*282]  standard, although seemingly required by the Constitution, became an early casualty of Roosevelt's emergency declaration, a casualty that has never again been retrieved or resuscitated. Evidencing "legerdemain possibility unmatched in constitutional jurisprudence," n119 the Gold Clause Cases upheld the emergency departure from the gold standard thereby enabling the government to achieve its goals "while maintaining the illusion that those laws were consistent with the Constitution." n120

Four Justices, led by states' rights champion James C. McReynolds, bitterly dissented in the Gold Clause Cases. Justice McReynolds wrote that the Gold Clause of the Constitution required adherence to a gold standard and that Congress' attempt to deem gold clauses in contracts inoperative was per se unconstitutional. n121 Observing that U.S. currency "began a rapid decline in the markets of the world" n122 following the 1929 stock market crash, Justice McReynolds accused the Roosevelt Administration and Congress of trying to undermine centuries-long expectations of stability in currency by taking American currency off the gold standard.

"We are dealing here with a debased standard, adopted with the definite purpose to destroy obligations. Such arbitrary and oppressive action is not within any congressional power heretofore recognized." n123 McReynolds scathingly denounced Congress and the President for trying to "destroy private obligations, repudiate national debts, and drive into the Treasury all gold within the country, in exchange for inconvertible promises to pay, of much less value," all under the guise of a "monetary policy." n124 McReynolds said the government may have realized profits amounting to $ 2.8 billion. n125 "The  [*283]  impending legal and moral chaos [was] appalling." n126

The Gold Clause Cases signified the end of the constitutional requirement that no state shall make anything but gold and silver coin a tender in payment of debts. n127 Thus, the gold standard became an early constitutional casualty of the emergency. Indeed, the emergency rendered this constitutional provision a dead letter, forever after unenforced and overlooked by the federal courts. n128 More than sixty years of challenges based on this forgotten textual requirement, some quite compelling in logic, have been scuttled. The emergency is long since over, yet the powder burns and the bullet holes in the Constitution remain.

We now know that if a majority of the Supreme Court had not approved of government abrogation of the use of gold standards in contracts, President Roosevelt was prepared to make a full frontal assault on the Court by going public with a speech which openly condemned the Court and invoked emergency as the touchstone of validity for any measures reasonably submitted in its name. A draft of the speech Roosevelt planned to deliver in the event of a negative ruling included a Civil War-era quotation from Abraham Lincoln, and asserted that "to permit the decision of the Supreme Court to be carried through to its logical, inescapable conclusion would so imperil the economic and political security of this nation . . . [that I shall be required to] immediately take such steps as may be necessary . . . ." n129

Thus, even as early as February of 1935, the President, together by implication with Congress, was prepared to assert non-war emergency as a ground to subvert the rulings of the Supreme Court. A constitutional crisis of immense proportions was brewing hotly in the background during the Supreme Court's deliberations on the New Deal measures.

B. Romancing the Commerce Clause

The adoption of the Commerce Clause provided a comucopia of constitutional power that allowed for the New Deal federal government to take shape. Yet, the role of President Roosevelt's national emergency declaration in effecting the metamorphosis of the commerce power has been greatly overlooked. Roosevelt's Justice Department instructed its lawyers that the "'so-called emergency argument really constitutes an integral part of the  [*284]  commerce point, and not a separate proposition.'" n130 The basic idea was that "transactions which might not ordinarily substantially affect interstate commerce may do so when, in an economic emergency," the nation becomes a more "interdependent economic unit." n131

The New Deal policy promoters used the emergency doctrine to lift expansive governmental measures up by their bootstraps, at a time when the measures would otherwise have received negative review in the courts under then-existing precedent. A.G. McKnight, who headed the National Industrial Recovery Act (NRA or NIRA), told his litigation division staff in 1934 that "courts will hardly hesitate to sustain the action of Congress" when presented with an emergency or national self-preservation rationale. n132 History shows this strategy to have been overwhelmingly successful. The statutes upheld as crisis measures under the shadow of Roosevelt's emergency were afterward looked upon as precedents for overwhelming expansions, but generally under the commerce power only. What was upheld as proper commerce regulation during the emergency was later considered precedent for the commerce power itself.

The emergency doctrine was an "adjunct to the commerce clause argument" that allowed the latter to pass review in some instances. n133 For instance, one federal district judge upheld certain NRA operations by holding that the national emergency "'may also have the effect of rendering a transaction which in normal times would have only an indirect, incidental, and insignificant effect on interstate commerce, a matter of great moment and of powerful effect in times of great emergency.'" n134 The emergency doctrine analysis addition to commerce arguments, however, fell on deaf ears in other federal courtrooms. n135 The overall notion that Depression conditions required an expansive reading of the Commerce Clause may account for much of the Clause's supremacy during the latter years of the twentieth century. n136

 [*285]  C. Schechter Poultry to the Rescue

The constitutional revolution under the Roosevelt administration did not go completely unrecognized. As soon as the NRA was enacted, it was criticized as unconstitutional by many in the legal profession. In a sense, it was the most extreme piece of New Deal legislation, yet it was also the vehicle for any future New Deal reformations. The NRA was not only intended to correct free market problems, but also to abolish market capitalism entirely and replace it with code-run regulation by the President. n137

The NRA was enacted only four months after President Roosevelt's inauguration and faced embittered combat in lower federal courts. n138 A year later, however, critics charged that government lawyers were deliberately avoiding a Supreme Court test since only one case had ventured beyond the district courts by appeal. n139 The Attorney General was said to be so convinced of the NRA's unconstitutionality that he refused to defend it before the Supreme Court. n140

Ironically, the emergency backdrop is one possibility why the NRA was kept from appellate review. Opposing lawyers were somewhat slow to challenge the NRA's constitutional shortcomings, primarily because of the Roosevelt Administration's justification that the act responded to a national emergency. n141 This avoidance of judicial oversight, however, could not last forever. In light of overwhelming precedent against it, observers predicted that the NRA could be justified only as an emergency measure.

The Supreme Court, however, declined to allow the act to survive upon emergency grounds. In A.L.A. Schechter Poultry Corp. v. United States, n142 Chief Justice Hughes took only a few paragraphs to thoroughly dismiss the emergency rationale behind the NIRA, writing, "extraordinary conditions may call for extraordinary remedies," but they "do not create or enlarge constitutional power." n143

The Constitution established a national government with powers deemed to be adequate . . . but these powers of the national government are limited by the constitutional grants. Those who act under these grants are not at liberty to transcend the imposed limits because they believe that more or different power is necessary. Such assertions of extraconstitutional authority were anticipated  [*286]  and precluded by the explicit terms of the Tenth Amendment. n144

By all appearances, Schechter Poultry signified the death kneel for the emergency powers doctrine, n145 at least at the federal level. n146 Still, the possibility of the existence of hidden emergency powers continued to live on. Even Chief Justice Hughes allowed a hint of the doctrine to survive, stating "undoubtedly, the conditions to which power is addressed are always to be considered when the exercise of power is challenged." n147

Furthermore, the trust that the Supreme Court was being candid in its renunciation of the emergency doctrine was probably misplaced. The New Deal Court's ultimate slide into blind deference to Congress' emergency legislation may well have been prompted as much by inner consideration of the crisis rationale as by reconsideration of its Commerce Clause jurisprudence. One legal historian, Michael Belknap, has charged that the Court's infamous 1937 "switch in time" was actually an effort to attain the expedient ends offered by the emergency power doctrine while avoiding the means of admitting the lack of well-established case law during the crisis. n148 Belknap wrote:

Like the traveler in Robert Frost's poem, during the Great Depression the legal community came to a fork in the road and was forced to choose between two paths, each of which lay equally open before it. The emergency power concept might have been the road selected to reach the constitutional flexibility that the national government needed to cope with a major domestic crisis. Instead, lawyers and judges opted for judicial self-restraint and took a route toward greatly increased federal regulation, which led to virtually unlimited congressional power under the commerce clause. n149

In the end, "the American legal community could not accept the emergency powers doctrine," at least on its face. n150 Another writer asserted that complete acceptance of the government's emergency arguments would have signaled a reversal of Marbury v. Madison, n151 and the Court would have scuttled its own lofty place in America's constitutional scheme. n152 Instead, the Court responded to President Roosevelt's 1937 court-packing effort by adopting virtually wholesale the emergency arguments of government lawyers while drafting its  [*287]  opinions in Commerce Clause terms. The Supreme Court buckled under the weight of immense political power and pressure, n153 temporarily ending its reign as a counter-majoritarian check on the political branches, but hoped to salvage enough strength to fight another day.

The Court began upholding acts of Congress identical to those it had previously struck down as beyond the government's power. n154 The pretense the Justices gave was that they were reinterpreting the Commerce, Taxing, and Spending Clauses. The Court never suggested it was submitting to emergency reinterpretation in light of the threats made upon it by the Roosevelt Presidency. The uniqueness of the moment, however, suggested that the Court had sacrificed principle for survival.

The emergency measures eventually proposed by the Roosevelt Administration and ratified by the pro-Roosevelt Congress in 1933 went far beyond actions to defeat economic depression. n155 New Deal bills also increased federalization of criminal law n156 and furthered the nationalization of the dual court system (merging law and equity) with the promulgation of the Federal Rules of Civil Procedure in 1938. Both traditional constitutionalists and advocates of departure agreed that the traditional Constitution was reaching the "point of no return." n157 The emergency had become permanently grafted into American law whether the judiciary admitted it or not.

One significant remnant of the New Deal emergency has been the immense growth of the federal bureaucracy under the executive branch. Until the New Deal Court took shape in the late 1930s, the Supreme Court interpreted the Constitution to require one person, the President, to execute all federal laws. n158  [*288]  The advent of an immense "headless fourth branch of government" was originally allowed solely in the context of the New Deal national emergency. n159 The passage of time, however, has rendered the non-delegation doctrine a dead letter at the federal level. Congress may now delegate authority, along with political accountability, broadly to agencies in the executive branch largely independent from the direct control of the President.

The impact of Roosevelt's national emergency decree upon the war power is often ignored. Under the continuing state of emergency, the President routinely thrusts the American military into protracted foreign conflicts without congressional approval. Conflicts in Korea, Vietnam, Iraq, and Somalia were all authorized and fought not with a congressional declaration of war but with emergency delegations of congressional authority.

The Korean War, in particular, was never officially declared as such by Congress. Moreover, at the end of the Korean War, the official state of emergency that was declared by Congress was not terminated. n160 In fact, the permanent emergency nature of the Cold War transferred the Korean police action into a prolonged domestic concern.

There is also a permanent state of emergency rule over agriculture continuing to this day. The broad grant of regulation over agricultural production and pricing allowed under the modern version of the New Deal (emergency) Agricultural Adjustment Act of 1933 (AAA) allowed President Nixon to impose outright agricultural price freezes in 1972. n161 The AAA also enabled Presidents Ford, Carter, Reagan, and Bush to virtually control farm production and market prices. n162

In addition to the 1933 and Korean War emergencies (both continuing into the 1970s), two other national emergencies were declared. n163 On March 23, 1970, President Nixon declared a national emergency to confront a strike by U.S. Postal Service employees. n164 Nixon later proclaimed another emergency in the face of an international monetary crisis, which allowed him to place strict  [*289]  import controls without lengthy deliberations in Congress. n165


In 1972, Senators Frank Church of Idaho and Charles Mathias of Maryland launched an investigation into the impact of emergency declarations and the possible consequences of terminating the declared states of national emergency that had prevailed since 1933. Their Special Committee on the Termination of the National Emergency was convened in the backdrop of congressional contempt and distrust for President Nixon with regard to both his foreign and domestic actions. n166

The Church-Mathias Committee scoured through the Statutes-at-Large and the United States Code, solicited commentary from executive agencies, and ultimately drafted an eye-opening report on the twentieth century's national emergency declarations. n167 The foreword of the report opened with the startling statement that "since March 9, 1933, the United States has been in a state of declared national emergency." n168 The report itself began:

A majority of the people of the United States have lived all of their lives under emergency rule. For 40 years, freedoms and governmental procedures guaranteed by the Constitution have, in varying degrees, been abridged by laws brought into force by states of national emergency. The problem of how a constitutional democracy reacts to great crisis, however, far antedates the Great Depression. As a philosophical issue, its origins reach back to the Greek city-states and the Roman Republic. And, in the United States, actions taken by the Government in times of great crises have - from, at least, the Civil War - in important ways shaped the present phenomenon of a permanent state of national emergency. n169

The committee found that 470 provisions of federal law owed their force to emergency proclamations. n170 Together these provisions delegate to the President a vast range of powers sufficient to rule the country "without reference to normal constitutional processes." n171

Perhaps not a surprise to cynical observers, the federal agencies responsible for administering the delegated power under national emergency pretenses responded by recommending that Congress solidify the authority granted to  [*290]  them by enacting expressly permanent legislation. The Treasury Department, for instance, recommended that the emergency banking measures enacted on March 9, 1933, and still in effect after forty years, be either retained in present form or enlarged in scope to cover all financial institutions, including foreign banks having offices or branches in the United States. n172

In 1976, Congress passed the National Emergency Termination Act (NETA), n173 requiring that any future national emergency declared by the President terminate on the anniversary of its declaration unless the President publishes in the Federal Register, and transmits to Congress, a notice of its continuation. This enactment, and others thereafter, allegedly terminated all states of emergencies. n174 This termination, however, was in name only. n175 The reality was that the emergency powers taken were never returned; they continued in the U.S. Code as permanent powers. n176 Indeed, the Trading With the Enemy Act (TWEA), still in its New Deal "Americans-as-enemy" format, was specifically exempted from NETA. n177 The Supreme Court upheld the lengthy period of embargoes and other economic and non-economic sanctions against Cuba, for instance, as a legitimate extension of TWEA. n178

Commentators have criticized NETA as essentially meaningless in that a half-century of federal enactments gave the President virtually unlimited regulatory powers over the economy regardless of whether he did so in an emergency context or not. n179 Moreover, the precedents of the New Deal Supreme Court serve as a permanent gloss on the Constitution, effectively superceding all legislative attempts to draw back governmental powers into their previous, pre-New Deal, shell. n180 While modern, federal case law is  [*291]  devoid of emergency power jurisprudence, an unstated recognition of national emergency powers expansion remains an intractable and viable factor in today's constitutional whole. Through its adherence to the emergency doctrine, the Supreme Court imposes no limitations on Congress' direct regulation of manufacturing and conditions of labor and virtually no limitation on Congress' regulation of domestic civil and criminal matters. n181 As President Roosevelt's New Deal regime gained in age and legitimacy, its original emergency component was forgotten. n182 "A half-century later, the New Deal Constitution - far less respectful of the rights of property and contract, far more respectful of national power - has been woven into the very fabric of the modern polity . . . ." n183

The emergency doctrine as a proposition of law has been permanently wired into the operating systems of our national hard drives yet without any obvious signs of its programming language. A close analog to this state of willful ignorance can be found in the war on drugs, which since the 1970s has exacted a similarly unstated, yet no less palpable, toll on our constitutional substance. n184 If war, defined in legal terms, allows a relaxation of the Constitution, as emergency doctrine proponents assert, then the war on drugs, like any emergency justification, takes on the characteristics of a traditional war regardless of its origin as a metaphor. n185 Similarly, today's federal judiciary  [*292]  has implicitly adopted the emergency doctrine, largely based on an inheritance of jurisprudential interpretations of the Commerce, Tax, and Spending Clauses that cannot be reconciled with the Founders' vision of such provisions.


The declaration of a national emergency by President Franklin Delano Roosevelt and the New Deal Congress in 1933 ushered in a new era of constitutional development. Regardless of the Court's declarations to the contrary, the emergency declared by Roosevelt became grafted into the Court's New Deal jurisprudence in the form of drastic reinterpretations of the Constitution's economic clauses. The changes resulting from Roosevelt's emergency measures radically altered the American form of government. n186 Even after the grounds for the alleged emergency presumably ended, the expanded federal powers invoked under the New Deal emergency decree remained. Today's American political and legal structure is based, to a large extent, on this altered constitutional state invoked by that emergency decree.

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