Constitutional responses to emergencies

The Steel Seizure Case (1952) raised the critical issue of the constitutional prescription for confronting emergencies. President Harry Truman, facing a nationwide steel strike, which he believed would undermine America’s participation in the Korean War and the rebuilding of Europe, boldly asserted the claim of a presidential emergency power to seize the steel mills to maintain production.
The Supreme Court, in a landmark ruling, rejected Truman’s assertion of inherent executive authority. Justice Felix Frankfurter, in a concurring opinion, stated: “The fact that power exists in the Government does not vest it in the President.” If the constitutional authority to meet an emergency is not placed in the presidency, then where is it located?
The framers of the Constitution chose wisely when they refused to vest an emergency power in the hands of the president. Their deep knowledge of centuries of abuse of executive power, as we have observed, informed their adoption of the doctrine of retroactive authorization. American historical practice, dating to the founding, reflects the wisdom of this approach.
Rep. Alexander White, a leader in the Virginia Ratifying Convention, addressed the practice of legislative indemnification — retroactive authorization — in the First Congress and shared with colleagues an example of its use during the Revolutionary War. White explained that Gov. Nelson of Virginia, facing a shortage of materials, acquired supplies for his army, even though that meant he was exceeding his lawful authority. But the legislature agreed with his action and promptly indemnified him since it agreed that Virginia was the beneficiary of the governor’s resolute measure. Rep. White referred to the retroactive authorization as the exemplary means of responding to an emergency. The alternative was to leave to the governor the sole discretionary power to judge the emergency and respond to it, which would deprive the legislature of its lawmaking authority.
In 1793, Alexander Hamilton, as Secretary of the Treasury, was the subject of a House resolution that charged him with violation of the appropriations laws. Hamilton denied any wrongdoing and the House vindicated his denial. During debate, both sides acknowledged the controlling importance and weight of retroactive authorization. Rep. William Smith of South Carolina observed that a nation might face “urgent” circumstances that would require immediate action — insurrection or invasion — but the legislature would decide whether to indemnify the executive, a decision that would hinge on the legislature’s perception of the emergency circumstances that might warrant departure from the law and the wisdom of the executive’s response to them.
In 1807, a British warship attacked the Chesapeake. Because Congress was in recess, President Thomas Jefferson spent unappropriated funds in violation of the law. In his defense, Jefferson explained to Congress: “To have awaited a previous and special sanction by law would have lost occasions which might not be retrieved. I trust that the Legislature, feeling the same anxiety for the safety of the country, will approve, when done, what they would have seen so important to be done if then assembled.”
In the debate that preceded retroactive authorization of Jefferson’s illegal acts, House members duly acknowledged the illegal nature of Jefferson’s acts and focused on the pivotal question underlying every request for ratification. The prominent Federalist, Rep. Samuel Dana of Connecticut, stated the essential question: “Would you, had you assembled at this time, with a knowledge of the existing circumstances, would you have authorized these expenses to be incurred.” If Congress did not share the president’s perception of emergency, or the acts that he performed to meet it — if indeed, “the Legislature condemns the procedure,” Dana added, then “the officers must bear the loss.” The “loss” might include impeachment.
By virtue of its status as the nation’s lawmaking authority, Congress represents, in Jefferson’s words, the “controlling power” which has the capacity to make legal an action which was illegal at the time it was undertaken. A presidential claim to such authority would eviscerate the concept of legal restraint, for the president would be governed by his own compass. In that event, every question of emergency would be a matter of the executive’s political interest, discretion and will.
The most famous example of presidential resort to retroactive ratification occurred during the Civil War, when President Abraham Lincoln explained to Congress in an address on July 4, 1861, why he had taken action to defend the Union in reaction to the Confederacy’s attack on Fort Sumter, which initiated the war. While Congress was in recess after the attack on April 12, Lincoln issued proclamations calling forth state militias, suspending the writ of habeas corpus and instituting a blockade on the rebellious states. The authority to take those steps is vested by the Constitution in Congress, not the president. Lincoln said that his acts were a response to a “popular demand and public necessity, trusting then, as now, that Congress would readily ratify them.”
Congress did ratify Lincoln’s acts. It is testimony to Lincoln’s commitment to constitutional government that while caught in the clutches of America’s gravest crisis, he nevertheless refrained from laying claim to a theory of High Prerogative but, in fact, adhered to the practice and tradition of legislative ratification.
If Lincoln had bypassed Congress and asserted authority to judge his acts, he would have become the dictator that southerners claimed he was. Lincoln was no dictator.
 
David Adler, Ph.D., is a noted author who lectures nationally and internationally on the Constitution, the Bill of Rights and presidential power. His scholarly writings have been cited by the U.S. Supreme Court and lower courts by both Democrats and Republicans in the U.S. Congress. Adler’s column is supported. in part. through a grant from Wyoming Humanities funded by the “Why it Matters: Civic and Electoral Participation” initiative, administered by the Federation of State Humanities Councils and funded by Andrew W. Mellon Foundation. Adler can be reached at david.adler@alturasinstitute.com.