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direction of the same councils which are appointed to preside over the common defense."

And in Home Bldg. & Loan Assn. v. Blaisdell (290 U. S. 398, 426), Chief Justice Hughes, pointing out the constitutional significance of an emergency, said: the constitutional question presented in the light of an emergency

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is whether the power possessed embraces the particular exercise of it in response to particular conditions. Thus, the war power of the Federal Government is not created by the emergency of war, but is a power given to meet that emergency."

2. Thus the power of Congress never springs from the fact of war but from the conditions which exist during war. And the extent and timing of this power must necessarily adapt itself to the shifting character of warfare. Modern warfare places overwhelming emphasis on specialized equipment, which must be turned out in quantity. The unhappy fate of Poland, France, Belgium, Holland, Norway, and other countries now victims of the blitzkrieg leaves no question that a nation lacking essential warplanes, tanks, and motorized artillery cannot successfully beat off an attack. The present situation in England shows that even a tremendous armament effort takes years to develop the rate of production demanded by modern methods of warfare. This was apparent even as a result of the experience of the World War.

The industrial mobilization plan, revision of 1939, prepared by the Assistant Secretary of War and Assistant Secretary of the Navy offers a competent military analysis of the World War experience in the following terms:

"The experience of most of the great belligerent nations during the World War were, in many important particulars, strikingly similar. Expenditures of munitions far exceeded prewar estimates. Reserves of materials were quickly exhausted. Inadequate plans for military procurement and for industrial mobilization resulted in uncoordinated purchasing by the many Government agencies, inequitable distribution of the industrial load, inefficient utilization of the transportation system, and ineffective coordination of the entire industrial effort during early stages of the war. The above resulted in delay in the procurement of munitions for support of the armed forces, violent disturbances of prevailing price levels, unequal distribution of the economic burdens of war, and waste of national resources.”

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In the light of the experience of the World War, tragically supported by the course of the present war, there can be no dispute that a major effort to build up national defense must be begun long before any actual outbreak of war if the defense is to be successful. For this reason, it must follow that the great power vested in Congress to wage a successful war necessarily includes the power to build up the defenses of the country against the danger of war. problems of modern mechanized warfare can only be solved by a Government which is equipped with full powers to organize its resources and productive facilities for the national defense and security.

The

3. Common sense and sound principle are supported by judicial precedent in this conclusion, that the war power to defend the existence of the Nation embraces the defense power to prepare for the defense of the Nation. In the earliest days of the Republic, it was recognized that the war power was a defense power. The wars between Great Britain and France under Napoleon seriously jeopardized the security of the United States. One of the measures adopted by President Jefferson in the interest of national defense was the placing of an embargo on commerce with England and France. The constitutionality of the embargo was tested in the Federal district court at Salem, Mass., and the Government urged that the measure was to be upheld as a proper exercise of the war power of Congress. The court sustained the embargo, relying primarily on the power of Congress to regulate commerce. However, the court also concurred with the argument of the Government and stated:

"Congress has power to declare war. It, of course, has power to prepare for war; and the time, manner, and the measure in the application of constitutional means, seemed to be left to its wisdom and discretion.

The Fighting Powers of the United States Under the Constitution, 55 Congressional Record, p. 551.

Sen. Doc. No. 134, 76th Cong., 2d sess., p. 1.

Adopted December 22, 1807, and supplemented by acts of January 9, 1808; March 12, 1808: April 25, 1808; and January 9, 1809 (2 Stat. 451, 453, 499, and 506).

Cited in F. Blake, Examination of the Constitutionality of the Embargo Laws, p. 56.

The same principle is established in the recent decision of the Supreme Court in Ashwander v. Tennessee Valley Authority (297 U. S. 288, 326–328), upholding Wilson Dam and its power plant (of the Tennessee Valley Authority) as constructed in the exercise of the constitutional functions of the Federal Government. Authority for the construction of the dam was granted in section 124 of the National Defense Act of June 3, 1916 (39 Stat. 166, 215), which was passed in peacetime in an effort to strengthen the defense of the country. The position of the Government was stated by the Court as follows:

"The Government's contention is that the Wilson Dam was constructed, and the power plant connected with it was installed, in the exercise by the Congress of its war and commerce powers, that is, for the purposes of national defense and the improvement of navigation."

The Court upheld the Government on both grounds, and stated with reference to the war power of Congress :

"We may take judicial notice of the international situation at the time the act of 1916 was passed, and it cannot be successfully disputed that the Wilson Dam and its auxiliary plants, including the hydroelectric power plant, are, and were intended to be, adapted to the purposes of national defense."

In Nashville C. & St. L. Ry. v. Walters (294 U. S. 405, 417), the Court stated that the Federal Government's peace-time highway construction program was in the interest of the national defense.

In United States v. Gettysburg Electric Co. (160 U. S. 668), the Court upheld an exercise of the eminent domain power in order to establish the battleground of Gettysburg as a national monument by reference to the powers of Congress to protect and preserve the country, and by recognizing that that power embraced the power to build up morale in anticipation of possible future emergencies. The Court noted:

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* The greater the love of the citizen for the institutions of his country, the greater is the dependence properly to be placed upon him for their defense in time of necessity, and it is to such men that the country must look for its safety."

The Supreme Court of Australia, in upholding the price control features of the War Precautions Act of 1914-16, likewise said that the war power of the legislature "includes preparation for war in time of peace" (Farey v. Burnett, 21 Comm. L. R. 433, 441 (opinion of Chief Justice)).

4. As Professor Willoughby points out, in his famous text' the principle that the "war" power includes a "defense" power existing in the absence of hostilities is also shown by the precedents upholding the exercise of the war power after termination of armed hostilities, and referring to the wide discretion which must be left to Congress in this matter.

In Stewart v. Kahn (11 Wall. (78 U. S.) 493), the Court recognized the vitality of the war power during the post-war reconstruction following the Civil War (see pp. 506–507):

"Congress is authorized to make all laws necessary and proper to carry into effect the granted powers. The measures to be taken in carrying on a war and to suppress insurrection are not defined. The decision of all such questions rests wholly in the discretion of those to whom the substantial powers involved are confided by the Constitution.

"In the latter case the power is not limited to victories in the field and to dispersion of the insurgent forces. It carries with it inherently the power to guard against the immediate renewal of the conflict and to remedy the evils which have arisen from its rise and progress."

The Court reiterated this position in Hamilton v. Kentucky Distilleries Co. (251 U. S. 146), upholding the National Prohibition Act, passed November 21, 1918, 10 days after the armistics, under the war power:

"Conceding, then, for the purpose of the present case, that the question of the continued validity of the War Prohibition Act under the changed circumstances depends upon whether it appears that there is no longer any necessity for the prohibition of the sale of distilled spirits for beverage purposes, it remains to be said that on obvious grounds every reasonable intendment must be made in favor of its continuing validity, the prescribed period of limitation not having arrived; that to Congress in the exercise of its powers, not least the war power upon which the very life of the Nation depends, a wide latitude of discretion

'The Constitution of the United States, 2d ed., p. 1574.

must be accorded; and that it would require a clear case to justify a court in declaring that such an act, passed for such a purpose, had ceased to have force because the power of Congress no longer continued. In view of facts of public knowledge, some of which have been referred to, that the treaty of peace has not yet been concluded, that the railways are still under national control by virtue of the war power, that other war activities have not been brought to a close, and that it cannot even be said that the man power of the nation has been restored to a peace footing, we are unable to conclude that the act has ceased to be valid." See also Commercial Trust Co. v. Miller (262 U. S. 51, 56); Ruppert v. Caffey (251 U. S. 264).

If the power of Congress is to be recognized, and its discretion to be accorded the widest latitude, with respect to the problems following cessation of hostilities, how much more essential and imperative is it, remembering that the war power is the power to defend the very life of the nation, to recognize such power, and to accord such latitude to discretion, with respect to measures designed to prepare the Nation more completely against the dangers of a war.

5. The question remains whether, agreeing that the "war" powers are really also "defense" powers, existing circumstances are such that the defense powers may validly be exercised. In view of common knowledge of world conditions, to state this question is to answer it.

The outbreak of war in Europe and the spread of hostilities over the continents of Europe, Asia, and Africa prompted the President on September 8, 1939, to issue a proclamation declaring a limited national emergency and directing measures "for the purpose of strengthening our national defense within the limits of peacetime authorizations." The terrible movement of the war has brought danger within the confines of the Western Hemisphere. To meet the growing threat to the national security, the President on May 27, 1941, proclaimed that "an unlimited national emergency confronts this country, which requires its military, naval, air, and civilian defenses be put on the basis of readiness to repel any and all acts or threats of aggression directed toward any part of the Western Hemisphere."

The mobilization of the defenses of this country has been steadily progressing with increasing momentum.

The Congress has responded quickly to the emergency. Its enactments reflect the threat to our defense. Billions of dollars have been appropriated for the procurement of defense articles." Normal procurement procedures have been relaxed to permit the expediting of orders placed by the Army and Navy." Priorities have been established to give preference to Army and Navy orders over orders for private account or for export," and more recently to institute complete allocation of materials when fulfillment of defense orders results in a residual shortage. Registration of all aliens has been required." The President has been given authority to lend or lease war materials to foreign belligerent governments whose defense the President deems necessary to the national security.'

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Most important of all are the provisions of the Selective Service and Training Act of 1940. This act enacted into law the two most far-reaching measures the provisions drafting the able-bodied manpower of the country into the armed forces, and the provisions authorizing the taking over of productive facilities in certain circumstances. Indeed, the passage of this statute assumes, and its validity probably depends upon, the recognition of the compulsive "defense" powers possessed by Congress even in the absence of war.

4 F. R. 385. 26 F. R. 2617.

10 E. g., naval appropriations for 1941: Public, No. 588, approved June 11, 1940; Public, No. 629, approved June 14, 1940; Public. No. 757, approved July 19, 1940; Public, No. 635, approved June 15, 1940. Army appropriations for 1941: Public, No. 611, approved June 13, 1940; Public, No. 691. approved June 29, 1940; Public, No. 692, approved June 29, 1940. Supplemental defense appropriation acts for 1941: Public, No. 668, approved June 27, 1940; Public, No. 692, approved June 26, 1940; Public, No. 781, approved September 9, 1940. Many more billions have been appropriated since then. 176th Cong., Public, No. 703, approved July 2, 1940 (Army); Public, No. 671, approved June 28, 1940, sec. 1.

12 76th Cong., Public. No. 671, sec. 2 (a).

13 Public, No. 89, 77th Cong., approved May 31, 1941.

14 Public, No. 670, 76th Cong., approved June 28, 1940.

15 Public, No. 11. 77th Cong., approved March 11, 1941.

10 Public, No. 783, 76th Cong., approved September 16, 1940.

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The Selective Service and Training Act of 1940 is without precedent as a draft of men for armed forces in the absence of a declaration of war. The World War Draft Act was upheld under the war powers of Congress. The Supreme Court said:

"The possession of authority to enact the statute must be found in the clauses of the Constitution giving Congress power 'to declare war; to raise and support armies, but no appropriations of money to that end shall be for a longer term than 2 years; to make rules for the Government and regulations of the land and naval forces.' Article I, section 8. And, of course, the powers conferred by these provisions like all other powers carry with them as provided by the Constitution the authority 'to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.' Article I, section 8." 17

In upholding the validity of the Selective Service and Training Act of 1940, the Federal courts have clearly recognized that the power of Congress depends upon the actual facts.

In Stone v. Christensen (36 F. Supp. 739), decided December 23, 1940, the district court for Oregon said (pp. 742-743) :

"The petition of Stone brings changes upon 'peace time' conscription. The enactment of the Selective Service Act of 1917 was preceded by a declaration of war. But at the time of the passage thereof and for many months thereafter the United States was engaged in training the armies thus raised. There was little possibility of an attack upon the country or its forces until these had been transported outside the boundaries. In this present period, the wars undeclared under the law of nations, the disregard of international convention, the hostile concentrations cloaked by manifestos of pacific intention, the elimination of time and distance as ponderable factors, the lightning strokes of modern arms are actualities over which the words 'at peace' cannot be permitted to tyrannize in making judgments. Although Congress did not declare ware, the decisions under the act of 1917 are squarely applicable in view of military necessity. Congress declared a national emergency, ordered part of the Organized Militia, the National Guard, into service and the registration of a portion of the unorganized militia. Emergency does not create power.'" The decisions of the Supreme Court above cited cannot be justified solely then upon the basis that war existed. But facts which create emergencies lay foundation for the use of express powers, the exercise of which could not be otherwise justified. Congress, in possession of the facts and no less than the courts restrained by the obligation to support and maintain the Federal Constitution, passed the act requiring registration. In the light of all the circumstances in dealing with registration alone, "There is no occasion at this time to mark the limits of governmental power in the exaction of military service when the Nation is at peace.' The situation of this country will be judged by the law of the nations, but whether events prove we are at war, in a state of war, or clinging to an equivocal neutrality, a failure to register manpower of the country would be a failure to provide for 'the common defense.'"

Likewise, in U. S. v. Rappeport et al. (36 F. Supp. 915), the district court for southern New York pointedly stated:

"It is a fact that at the time of the enactment of the 1917 statute, the United States was at war and that the Supreme Court of the United States referred to the emergency then existing, but it did not hold nor intimate that the emergency created the power to raise armies by conscription or that power conferred by the Constitution could be exercised only in time of war and not in any other emergency.

"That the United States may be unprepared to resist an aggressive and destructive force which has subjugated many peaceful nations and which may seek to overpower the United States presents an emergency as serious as armed conflicts in which the power to draft could not be questioned.

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* It cannot be assumed that the Constitution intended to prevent the raising of an army by voluntary enlistment or conscription until war has been declared or actually begun. The provisions cannot be construed so as to restrict the exercise of the power in a way requiring a delay that may render the grant of the power useless." (Italics supplied.)

17 Selective draft cases, 245 U. S. 366, 377.

15 Citing Home Bldg. & Loan Assn. v. Blaisdell (290 U. S. 398)

In affirming this opinion, the Circuit Court of Appeals for the Second Circuit held (Herling v. U. S., decided June 21, 1941):

"The validity of the Selective Training and Service Act of 1940, and the regulations thereunder, is clear under the decisions sustaining similar legislation of 1917. Selective draft law cases (245 U. S. 366); Cox v. Wood (247 U. S. 3); Hamilton v. Regents of the University of California (293 U. S. 245, 262); United States ex rel. Bergdoll v. Drum, 2 Cir. (107 F. 2d 892), certiorari denied (310 U. S. 643). To attempt a distinction because the present act applies, though no formally declared war exists, is to import a difference which does not appear in the Constitution itself, article 1, section 8, clause 12, and which was definitely repudiated in the cited cases. Compare the well-reasoned opinions of Bondy, D. J., in ruling on demurrers to the indictments herein, U. S. v. Rappeport (D. C. S. D. N. Y., 36 F. Supp. 915), and of Fee, D. J., in Stone v. Christensen (D. C. Or., 36 F. Supp. 739)

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Section 9 of the Selective Service and Training Act grants authority, in the event of refusal to accept compulsory orders placed by the Government for the taking over of productive facilities required for national defense. The language of the section was modeled upon and substantially reenacts section 120 of the National Defense Act of 1916, which was effective "in time of war or when war is imminent." That statute was also upheld as a valid exercise of the war powers, the court saying:

"The constitutionality of this act is not challenged. That its enactment was a lawful exercise of the war powers of Congress must be conceded." 20

The current enactment, assuming widespread power in the Government to direct the use of private property, likewise finds sanction in the national-defense powers of Congress.

It is plain that the national-defense powers of Congress are available in the present emergency.

(c) Maximum price legislation is in furtherance of, and indeed a necessary part of, the national-defense program.-Legislation authorizing the prescribing of maximum price regulations is not only definitely related to and in furtherance of the national defense but is indeed an indispensable part of our program if our national-defense effort is to be a thorough-going, coordinated, and successful effort.

The need for price control as part of a program for national defense is plainly established by the past experience of the United States, particularly during the first World War; the experience of foreign countries; the studies by economists and experts; the investigations by congressional committees since the World War and the reports of those committees. That experience and material, which is set forth, though briefly and only in part, in the following pages, demonstrates the basic validity of the proposed legislation.

(1) Judicial precedent: The Supreme Court has already indicated the constitutionality of fixing of maximum prices as part of a war or defense effort. Such price fixing was provided with respect to such products as food, fuel, and wool in the Food and Fuel Control Act (Lever Act) of August 10, 1917, as amended. And in United States v. MacIntosh (283 U. S. 605, 622) the Court approved the constitutionality of that price fixing, stating: "To the end that war may not result in defeat, * prices of food and other necessities of life [may be] fixed or regulated." Although in view of the limited scope of the Lever Act the Court had no occasion to refer to the validity of statutes authorizing price fixing for other commodities, plainly the same considerations apply.

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In Highland v. Russell Co. (279 U. S. 253), the Supreme Court again indicated the appropriateness of maximum price regulation of coal in the course of the country's vast industrial effort. The Court pointed out (p. 262):

"The principal purpose of the Lever Act was to enable the President to provide food, fuel, and other things necessary to prosecute the war without exposing the Government to unreasonable exactions."

The Court traced the history of the price of coal from 1916 on, and noted the disruption of the market due to demands created by preparations for national defense, the panic among consumers, and the sp'raling of the price of coal.

13 50 U. S. C. A., sec. 80..

Moore & Tierney, Inc. v. Roxford Knitting Co. (265 Fed. 177, 180), certiorari denied (253 U. S. 498).

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