73. Act of Congress of July 13, 1861, ibid. at 695. 74. Ibid. at 695.

75. Abraham Lincoln, "To the Senate and House of Representatives, May 26, 1862," reprinted in The Collected Works of Abraham Lincoln, ed. Roy P. Basler et al. (New Brunswick, N.J.: Rutgers University Press, 1953), 5:241, quoted in Jill E. Hasday, "Civil War as Paradigm: Reestablishing the Rule of Law at the End of the Cold War," Kansas Journal of Law and Public Policy 5 (1996): 130.

76. Senate Special Committee on National Emergencies and Delegated Emergency Powers, A Brief History of Emergency Powers in the United States, 93rd Cong., 2d sess., 1974, Committee Print, p. 12.

77. "An Act to increase the Pay of the Privates in the Regular Army and in the Volunteers in the Service of the United States, and for other Purposes" (August 6, 1861), quoted in Hasday, P. 130.

78. Senate Special Committee on National Emergencies, Brief History of Emergency Powers, PP. 12-13.

79. Swayne & Hoyt v. United States, 300 U.S. 297 (1937). Citations omitted, ellipsis in original.

80. The Supreme Court has identified an extraconstitutional presidential "war power" over conquered territory, and that directive exists until the ratification of a treaty of peace. See, for example, Dooley v. United States, 182 U.S. 222 (1901).

81. A July 22, 1862, draft of the Emancipation Proclamation cited a statutory authority. It began: "In pursuance of the sixth section of the Act of Congress entitled 'An Act to suppress insurrection and to punish treason and rebellion, to seize and confiscate property of rebels, and for other purposes' approved July 17, 1862, and which Act, and the Joint Resolution explanatory thereof, are herewith published, I, Abraham Lincoln, President of the United States, do hereby proclaim to, and warn all persons. http://lcweb.loc.gov/exhibits/treasures.

82. James Bryce, The American Commonwealth (London: Macmillan and Co., 1891), 1:60.

83. Henry Adams, "The Session," North American Review 111 (1870): 60, quoted in Forrest McDonald, The American Presidency, (Lawrence: University Press of Kansas, 1994), p. 315.

84. Ibid., p. 320.

85. David Watson, The Constitution of the United States, Its History, Application and Construction

(Chicago: Callaghan & Co., 1910), p. 930n, quoting from his interview with Hayes.

86. McKinley's predecessor, President Grover Cleveland, issued 71 executive orders (second term), while President Benjamin Harrison issued only 6. Ibid.

87. Senate Special Committee on National Emergencies, Executive Orders in Times of War, pp.

26-27.

88. Theodore Roosevelt, An Autobiography (New York: Scribner, 1926), quoted in Senate Special Committee on National Emergencies, Brief History of Emergency Powers, p. 2.

89. Ibid.

90. Frederick Drinker and Jay Mowbray, Theodore Roosevelt, His Life and Work (Washington: National Publishing Co., 1919), p. 201.

91. Ibid., p. 181. In Roosevelt's defense, it was stated that President Cleveland had previously taken the same action by presidential directive with regard to Mexican War veterans.

92. Senate Special Committee on National Emergencies, Brief History of Emergency Powers, p. 41.

93. Senate Special Committee on National Emergencies and Delegated Emergency Powers, Emergency Powers Statutes, SR 93-549, 93d Cong., 1st sess. (Washington: Government Printing Office, 1974), p. 2.

94. Senate Committee on Government Operations and Special Committee on National Emergencies and Delegated Emergency Powers, The National Emergencies Act, 94th Cong., 2d sess., 1976, Committee Print, p. 1. Once a state of national emergency had been declared, statutory provisions that delegated extraordinary authority to the president became activated.

95. Senate Special Committee on National Emergencies, Executive Orders in Times of War, p. 25. 96. Senate Committee on Government Operations, National Emergencies Act, p. 1.

97. The Knox Resolution, 41 Stat. 1359, reprinted in House Committee on International Relations, Trading with the Enemy: Legislative and Executive Documents concerning Regulation of International Transactions in Time of Declared National Emergency, 94th Cong., 2d sess., 1976, Committee Print, pp. 235-36. Only the Trading with the Enemy Act, The Food Control and District of Columbia Rents Act, several Liberty Bond and Liberty Loan acts, and a joint resolution directing the War Finance Corporation to relieve an agricultural depression

survived the end of the Wilson administration.

98. First Inaugural Address of President Franklin Delano Roosevelt, reproduced in War and Emergency Powers, ed. Paul Bailey (Campo, Colo.: American Agriculture Movement, 1994), p. 58.

99. Note: "The International Emergency Economic Powers Act: A Congressional Attempt to Control Presidential Emergency Power," Harvard Law Review 96 (1983): 1114, note 61.

100. Sections 5 and 6 of the Trading with the Enemy Act (1917) were reprinted in Senate Special Committee on the Termination of the National Emergency, Hearings, 93rd Cong., 1st sess., April 11-12, 1973, pp. 101-2.

101. The National Emergencies Act, enacted September 14, 1976, terminated executive powers authorized under existing states of national emergency as of September 14, 1978. The next state of national emergency was declared 14 months later by President Jimmy Carter, on November 14, 1979, during the Iranian hostage situation. Since then, the United States has been constantly under a declared state of emergency. At present, 13 presidentially declared states of emergency exist concurrently.

102. The Emergency Banking Relief Act (EBRA) (March 9, 1933), inter alia, amended TWEA. The Emergency Banking Relief Act is reprinted in Senate Special Committee on the Termination of the National Emergency, Hearings, pp. 231-38.

103. Section 5(b) of the 1917 TWEA reads as follows:

That the President may investigate,
regulate, or prohibit, under such rules
and regulations as he may prescribe, by
means of licenses or otherwise, any
transactions in foreign exchange, export
or earmarking of gold or silver coin or
bullion or currency, transfers of credit in
any form (other than credits relating
solely to transactions to be executed
wholly within the United States), and

transfer of evidences of indebtedness or
of the ownership of property between
the United States and any foreign coun-
try, whether enemy, ally of enemy, or oth-
erwise, or between residents of one or
more foreign countries, by any person
within the United States; and he may
require any such person engaged in any
such transaction to furnish, under oath,
complete information relative thereto,
including the production of any books
of account, contracts, letters or other
papers, in connection therewith in the
custody or control of such person, either

before or after such transaction is com-
pleted.

The Act of September 24, 1918, inserted provisions relating to hoarding or melting of gold or silver coin or bullion or currency and to regulation of transactions in bonds or certificates of indebtedness.

104. The Emergency Banking Relief Act is reprinted in Senate Special Committee on the Termination of the National Emergency, Hearings, p. 231. In Senate debate, Sen. Arthur Robinson (R-Ind.) suggested that the words "or hereafter" be stricken. Sens. George Norris (R-Neb.) and David Reed (R-Pa.) argued that the language should remain in the bill, on the theory that it was "mere surplusage." House Committee on International Relations, Trading with the Enemy, pp. 243-44.

105. Senate Special Committee on the Termination of the National Emergency, Hearings, p. 238. 106. 12 U.S.C. § 95b. Since 1977 this power has been limited to "the time of war." PL 95-223.

107. Senate Special Committee on National Emergencies, Brief History of Emergency Powers, p. 57. The Senate debated the bill for eight hours. Senate Special Committee on the Termination of the National Emergency, Review and Manner of Investigating Mandate Pursuant to S. Res. 9, 93rd Congress, 93rd Cong., 1st sess., 1973, Committee Print, p. 11.

108. Ibid. Rep. Bertrand Snell (R-N.Y.) observed that "it is entirely out of the ordinary to pass legislation in this House that, as far as I know, is not even in print at the time it is offered." House Committee on International Relations, Trading with the Enemy, p. 248.

109. The National Defense Mediation Board was established by EO 8716 (March 19, 1941) to mediate labor disputes that, in the view of the secretary of labor, could threaten the national defense.

110. LeRoy, pp. 236–43.

111. Ibid., pp. 240-41.

112. Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 91 (1943). See also Toyosaburo Korematsu v. United States, 323 U.S. 214 (1944).

113.88 Congressional Record, 1942, 7044, quoted in Henry P. Monaghan, "The Protective Power of the Presidency," Columbia Law Review 93 (1993): 29. Roosevelt objected to a provision of the Emergency Price Control Act.

114. Relyea, Presidential Directives. In 1935, undoubtedly in response to Roosevelt's rule by

presidential directive, Congress enacted a require ment that future proclamations and executive orders of general applicability be published in the Federal Register. 44 U.S.C. § 1505.

115. LeRoy, p. 244.

116. United States v. United Mine Workers of America, 330 U.S. 258 (1947).

117. Ibid. at 263.

118. Ibid. at note 1. According to the Court, the act permitted the seizure of facilities necessary under the war effort until hostilities formally ceased; Truman declared the end of hostilities by proclamation on December 31, 1946.

119. Youngstown Sheet & Tube. See also the discussion in LeRoy, pp. 245-46.

120. Youngstown Sheet & Tube at 585. 121. Ibid.

122. Ibid. at 586.

123. Ibid. at 587-88.

124. Ibid. at 588-89.

125. Ibid. at 655.

126. Ibid. at 650.

127. Ibid. at 655.

128. Ibid. at 636.

129. Ibid. at 637.

130. Ibid.

131. Ibid. at 609.

132. Ibid. at 613.

133. Extensive excerpts from the Youngstown and Reich opinions can be found in Appendix 2 of the electronic version of this study, posted at the Cato Institute Web site, www.cato.org.

134. Section 8 of the order purported to "ratify" EOS 12276 through 12285 of January 19, 1981, issued by President Jimmy Carter.

135. Regan at 688. EO 12294 is either a usurpation of legislative power or an example of tyranny, depending on one's interpretation as to whether Article III, section 2, clause 2 grants Congress authority to suspend or limit access to the federal courts on a particular subject matter. See Ex parte McCardle, 74 U.S. 506 (1869), where the Supreme Court refused to hear McCardle's case after

acknowledging jurisdiction, because Congress had subsequently withdrawn the Court's jurisdic

tion over the case.

136. Senate Committee on Government Operations, National Emergencies Act, pp. 3-9. The Special Committee, chaired by Sens. Frank Church (D-Idaho) and Charles Mathias Jr. (R-Md.), determined that proclamations of national emergency gave force to 470 provisions of federal law. Ibid., p. 5. The committee issued SR 93-549, which listed "all provisions of Federal law, except the most trivial, conferring extraordinary powers in time of national emergency."

137. Ibid., p. 6.

138. 50 U.S.C. §§ 1601-51.
139. Ibid., § 1601.
140. Ibid., § 1621.

141. Ibid., § 1622. A joint resolution of Congress is the functional equivalent of a bill; both must be presented to the president for his signature. If vetoed, the joint resolution cannot become effective unless both the House and the Senate override the veto. Joint resolutions have statutory authority. (Riddick's Senate Procedure, rev. ed. [Washington: Government Printing Office, 1992), p. 225.) The National Emergencies Act also made the following provision: "Not later than six months after a national emergency is declared, and not later than the end of each six-month period thereafter that such emergency continues, each House of Congress shall meet to consider a vote on a joint resolution to determine whether that emergency shall be terminated."

142.50 U.S.C. § 1631.

143. Ibid., § 1641. Such reports, in the form of letters to Congress, are reproduced in, among other places, The Weekly Compilation of Presidential Documents. See, for example, letters to congres sional leaders dated January 21, 1998 (Middle Eastern terrorists); February 25, 1998 (Cuba); March 4, 1998 (Iran I); May 18, 1998 (Burma); July 28, 1998 (Iraq); August 13, 1998 (Export Control Regulations); October 19, 1998 (Colombia Drug Traffickers); September 23, 1998 (UNITA); October 27, 1998 (Sudan); November 9, 1998 (Iran II); November 12, 1998 (Weapons of Mass Destruction); May 28, 1998 (Yugoslavia); and December 30, 1998 (Libya). There appear to be two concurrent states of emergency attributed to Iran, as discussed in the March 4, 1998, notice: "Because the emergency declared by Executive Order 12957 constitutes an emergency separate from that declared on November 14, 1979, by

Executive Order 12170, this renewal is distinct from the emergency renewal of October 1997."

144. The International Emergency Economic Powers Act, p. 1105. However, Congress also permitted the president to extend, annually, his authority to exercise certain emergency powers derived from section 5(b) of TWEA, by way of the Foreign Assets Control Regulations (31 CFR § 500, et seq.), the Transaction Control Regulations (31 C.F.R. 505), and the Cuban Assets Control Regulations (31 C.F.R. § 515). Not surprisingly, such authority has been faithfully extended annually for more than 20 years. See, for example, Presidencial Determination no. 98-35, 63 Federal Register, 50455 (September 11, 1998); Presidential Determination no. 97-32, 62 Federal Register, 48729 (September 12, 1997), and Presidential Determination no. 96-43, 61 Federal Register, 46529 (August 27, 1996); the first extension was obtained by President Carter, 43 Federal Register, 40449 (September 8, 1978).

145. 50 U.S.C. §§ 1701-6.

146. The International Emergency Economic Powers Act, pp. 1105-6.

147. Ibid., p. 1106, note 20.

148. EO 12865 (September 26, 1993).

149. EO 12934 (October 25, 1994).

150. EO 12947 (January 23, 1995). 151. EO 12978 (October 21, 1995). 152. Proclamation 6867 (March 1, 1996). 153. EO 13047 (May 22, 1997).

154. EO 13067 (November 3, 1997).

155. EO 12722 (August 2, 1990); EO 12775 (October 4, 1991); and EO 12808 (May 30, 1992).

156. As the Senate Special Committee on National Emergencies and Delegated Emergency Powers observed, "[T]he institutional checks designed to protect the guarantees of the Constitution and Bill of Rights are significantly weakened by the growing tendency to give the President grants of extraordinary power without provision for effective congressional oversight, or without any limitation upon the duration for which such awesome powers may be used." Senate Special Committee on National Emergencies, Executive Orders in Times of War, pp. 8-9.

157. Riddick's Senate Procedure, p. 1202. 158. Ibid., p. 48.

159. Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting).