Roosevelt's 'Limited' National Emergency: Crisis Powers in the Emergency Proclamation and Economic Studies of 1939

• Author: Alden A. Fletcher
• Position: J.D., Georgetown University Law Center, 2020; B.S.F.S., Georgetown University, 2017
• Pages: 379-415

STUDENT NOTE

Roosevelt’s “Limited” National Emergency:

Crisis Powers in the Emergency Proclamation and

Economic Studies of 1939

Alden A. Fletcher*

ABSTRACT

On September eighth 1939, President Franklin D. Roosevelt issued a proclamation

of a “limited” national emergency. This was mere days after the Nazi invasion of

Poland, but years before the U.S. entry into the Second World War. Roosevelt did not

invoke any statutory authority as a basis for the proclamation or identify which emer-

gency authorities he was activating, making this a rare, general emergency proclama-

tion. Shortly thereafter, the Justice Department studied the interaction between a

declaration of emergency and the powers of the federal government. Upon close

inspection, the historical evidence does not suggest Roosevelt was invoking an inherent

executive power to declare emergencies or to take emergency action. Instead, the

actions and assertions of the Roosevelt administration during these events stand in

stark contrast to recent claims to an inherent executive emergency power. Moreover,

they call into question assertions that Congress and the courts should defer to a presi-

dential determination regarding the existence of an emergency.

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380

II. EMERGENCIES: THREE QUESTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 382

III. PRACTICE: THE PROCLAMATION OF 1939 . . . . . . . . . . . . . . . . . . . . . . 387

A. Studying and Drafting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 387

B. The Emergency Proclamation . . . . . . . . . . . . . . . . . . . . . . . . 390

C. More Proclamations and the Congressional Response. . . . . . 394

D. Analysis: General, but Not Inherent . . . . . . . . . . . . . . . . . . . 395

IV. THEORY: REGULATION BY EMERGENCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . 399

A. A Price Control Bill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 399

B. The Emergency Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400

C. “Fritz” Wiener and the Emergency Power . . . . . . . . . . . . . . 403

D. The Other Memos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406

* J.D., Georgetown University Law Center, 2020; B.S.F.S., Georgetown University, 2017. Special

thanks to Professor Daniel Ernst for helpful comments and guidance on this project since its early stages

in the New Deal Legal History Seminar. Many thanks as well to Professor Marty Lederman for

insightful comments. Finally, thanks to the student editors of the Journal of National Security Law &

Policy for their diligent work on this piece. © 2021, Alden A. Fletcher.

379

V. DISCUSSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409

A. Lessons from History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409

B. Emergencies Today . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 411

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 414

I. INTRODUCTION

On a sunny September afternoon in 1939, Robert Jackson, then U.S. Solicitor

General, arrived at the White House. War had erupted in Europe four days earlier,

and President Franklin D. Roosevelt wanted to discuss the powers available to

him to respond to the crisis.

1

Specifically, he sought to use an emergency declara-

tion to activate various statutory authorities to increase defense readiness. The

President was also worried about a sharp spike in consumer prices that had

accompanied the outbreak of war.

2

Roosevelt did not know precisely which

powers he sought, but he wanted to respond to these developments without rais-

ing public alarm. Reportedly, the request perplexed Jackson, and he offered to let

the President write the draft himself.

3

Roosevelt obliged, and he scrawled out a

handwritten proclamation, which he gave to Jackson to be reviewed by the

Department of Justice.

4

Unlike most Presidents who have declared national emer-

gencies before and since, Roosevelt did not invoke any specific statute, making

this a rare, general emergency proclamation.

Under the Trump administration, the United States saw a spate of troubling

emergencies, both real and fictitious.

5

After Congress refused to appropriate

funds for a border wall, President Donald Trump issued a proclamation of

national emergency allowing for construction to go forward regardless.

6

This pur-

ported emergency was widely criticized as non-existent.

7

More troublingly still,

in the face of the COVID-19 pandemic, the President claimed unlimited power

under the Constitution.

8

Though condemned by constitutional scholars, the for-

mer President’s assertion perhaps derived from the views of his Attorney

1. EUGENE GERHART, AMERICA’S ADVOCATE 181 (1958).

2. See discussion infra Sections III.A, III.B.

3. GERHART, supra note 1.

4. Id. At this point, there was not yet an Office of Legal Counsel, so Jackson’s office fulfilled that

advisory function. See U.S. DEP’T OF JUST., SUPPLEMENTAL OPINIONS OF THE OFFICE OF LEGAL

COUNSEL 421 (2013), https://perma.cc/8MKY-4XFD.

5. See Elizabeth Goitein, The coronavirus is a real crisis. The border wall obviously wasn’t., WASH.

POST (Mar. 12, 2020, 6:00 AM), https://perma.cc/P8MP-87JA.

6. Proclamation No. 9844, 84 Fed. Reg. 4949 (Feb. 15, 2019); Fred Barbash, Trump administration

tells judge Congress did not deny border wall funds when it declined to appropriate money for it, WASH.

POST (May 17, 2019, 7:34 PM), https://perma.cc/8S24-SEJS.

7. See, e.g., Cecillia D. Wang, Ending Bogus Immigration Emergencies, 129 YALE L.J. F. 620, 623–

24 (2020); Exclusive: Full Text of Bipartisan Declaration of Former Senior U.S. Officials Refuting

President’s Claim of a National Emergency at Southern Border, JUST SECURITY (Feb. 25, 2019), https://

perma.cc/BW4M-J556; Joshua Geltzer, Blame Trump, Not the U.S. Code for His Abuse of Emergency

Authority, JUST SECURITY (Aug. 26, 2019), https://perma.cc/2GJQ-2VJZ.

8. Meagan Flynn & Allyson Chiu, Trump says his ‘authority is total.’ Constitutional experts have ‘no

idea’ where he got that., WASH. POST (Apr. 14, 2020, 6:36 AM), https://perma.cc/T7G2-HUML.

380 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 12:379

General, William P. Barr, who has argued that the executive branch possesses an

inherent power under the Constitution to respond to a crisis.

9

In this fraught environment, the history of executive practice relating to emer-

gencies attains new relevance. Looking to how past executive branch actors have

dealt with crises and used emergency proclamations helps illuminate the range of

permissible presidential actions under the Constitution. This Note examines a se-

ries of September days in 1939 and offers a new look at how the Roosevelt

administration understood emergency powers. That fall, after Germany invaded

Poland, the fear of a new European war caused a brief, but acute, market panic in

the United States. Thus, the Roosevelt administration faced a foreign crisis with

domestic ramifications. In response, it adopted a flexible conception of emer-

gency that allowed it to stretch existing constitutional and statutory authority, but

that nonetheless respected the participation of the other branches of government.

This Note relies on original documents from the Library of Congress—some of

which have received little to no scholarly attention—to shed new light on Roosevelt’s

emergency actions. First, Roosevelt’s limited proclamation of national emergency,

issued on the eighth, shows the administration avoiding broad claims to executive

authority, even as it acted independently. Although the proclamation represented the

rare use of a declaration of national emergency not grounded in a particular statute,

the Roosevelt administration defended it on the basis of prior congressional delega-

tions and limited it to the factual predicate at hand. Second, studies from the Justice

Department on the constitutionality of price-fixing legislation provide a revealing

glimpse into the executive branch’s conception of emergency powers and responsibil-

ities. These documents show executive branch lawyers grappling with enigmatic

Supreme Court precedent on emergencies. The lawyers sought to give concrete sub-

stance to the Court’s cryptic formulation that emergency may not create power, but

may afford reason for exerting a power already enjoyed.

10

The historical evidence undermines claims that the Roosevelt administration

asserted an inherent executive power to declare emergencies, and it weighs against

arguments for a constitutional power of the executive branch to take emergency

actions. Although the Roosevelt administration adopted a flexible conception of

emergency, it relied on congressionally delegated powers and accommodated inter-

branch participation. In particular, administration lawyers strongly assumed that the

courts could review the factual predicate behind an emergency proclamation. These

findings call for skepticism when evaluating both claims by the executive branch to

9. See William P. Barr, Att’y Gen., Dep’t of Just., 19th Annual Barbara K. Olson Memorial Lecture

at the Federalist Society’s 2019 National Lawyers Convention (Nov. 15, 2019), https://perma.cc/3RQU-

TGV2 (“A related, and third aspect of Executive power is the power to address exigent circumstances

that demand quick action to protect the well-being of the Nation but on which the law is either silent or

inadequate – such as dealing with a plague or natural disaster. This residual power to meet contingency

is essentially the federative power discussed by Locke in his Second Treatise.”).

10. See Wilson v. New, 243 U.S. 332, 333 (1917) (citing Ex parte Milligan, 71 U.S. (4 Wall.) 2

(1866)); Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398, 426 (1934).

2022] ROOSEVELT’S “LIMITED” NATIONAL EMERGENCY 381