U. S. Supreme Court case, binding on all courts of the land, until the Supreme Court says it isn't:
"The individual may stand upon his constitutional Rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no such duty [to submit his books and papers for an examination] to the STATE, since he receives nothing therefrom, beyond the protection of his life and property. His Rights are such as existed by the law of the land [Common Law] long antecedent to the organization of the STATE, and can only be taken from him by due process of law, and in accordance with the Constitution. Among his Rights are a refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under a warrant of the law. He owes nothing to the public so long as he does not trespass upon their Rights." Hale v. Henkel, 201 U. S. 43 at 47 (1905)
"They that can give up essential liberty to purchase a little temporary safety, deserve neither liberty or safety." - Benjamin Franklin
"If ye love wealth better than liberty, the tranquility of servitude
better than the animating contest of freedom, go home from us in peace. We ask not your counsels or arms. Crouch down
and lick the hands which feed you. May your chains set lightly upon you, and may posterity forget that ye were our countrymen."
- Samuel Adams, speech at the Philadelphia State House on August 1, 1776.
World Banker Karen Hudes Reveals Act of 1871 Secret US Constitution - (YouTube)
Are you a 14th amendment
? (of the UNITED STATES CITIZENS (of the District of Columbia), INCORPORATED)
(15) “United States” means —
(A) a Federal corporation;
Are you an American Citizen? The Old Passports all listed Americans as American Citizens, and stated the United States of America instead of U.S. Citizens.
Did you know that one can be a citizen of a particular state. and not be a citizen of the "United States"?
Did you know that every person at his birth is presumptively a citizen or subject of the state of his nativity, and where, ….. his parents were then both subjects of that state, the presumption is conclusive. To the land of his birth he owes support and allegiance, and from it he is entitled to the civil and political rights and privileges of a citizen or subject. This relation, imposed by birth, is presumed to continue until a change of nationality is proved.
This is why the address of the mother is on the Birth Certificate. What is a Birth Certificate?
A man or woman is presumed at law to be a minor (a child in need of guardianship, AKA "Uncle
Sam") until presumption is repudiated and proved otherwise.
The act of congress of April 14, 1802, (2 Stat. 153, c. 28, § 1; Rev. St. §
2165,) provides that "an alien may be admitted to become a citizen of the United
States in the following manner, and not otherwise….
[The act of Congress, April 14, 1802, 2 Stat, 153, approximately 28, section 1, revised statute 2165 provides that:(resume Affidavit)
NOR as stipulated in CITY OF MINNEAPOLIS v. REUM , Eighth Circuit. May 29, 1893. My allegiance and fidelity is to the LORD GOD our creator, and at no time have I given My written intentions to become a Citizen of "UNITED STATES, INC." of a corporate nature by contract, as provided by statute at large. Therefore, I am "nonresident" to the residency and "alien" to the citizenship of the 14th Amendment and, in the terminology of the Internal Revenue Code, I am a "nonresident alien individual", domiciled on the land known as Texas State.
I have since changed my private declaration of status, but my point is, I do not live in the 10 square mile area known as "Washington, D.C." which is what is defined to be the "U.S.", nor do I work there, nor for any government agency! This needs to be declared in writing, and whoever may want to claim differently needs to be able to provide evidence to the contrary, including check stubs! I may be owed back income! <smile>
These clarifications alone, are a real incentive to begin to learn about Trust Law, and Equity. I am new to this Equity venue, so most of this website reflects an At Law venue, but as the days go more politically egregious, I see the value of really abiding in God's Law: Equity. I believe our Remedy is there….
18 U.S. Code § 911 - Citizen of the United States
Whoever falsely and willfully represents himself to be a citizen of the United States shall be fined under this title or imprisoned not more than three years, or both.
Post Office and Zip Codes. I bet you didn't know this!
The following court cases are more along the line of government acting as artificial persons….. vs. the "natural born Citizen" topic, but it may be helpful.
I'm attaching a court case
MONELL v. NEW YORK CITY DEPT. OF SOCIAL SERVICES,
along with a snippet from it here below.
In addition, by 1871, it was well understood that corporations should be treated as natural persons for virtually all purposes of constitutional and statutory analysis. This had not always been so. When this Court first considered the question of the status of corporations, Mr. Chief Justice Marshall, writing for the Court, denied that corporations "as such" were persons as that term was used in Art. III and the Judiciary Act of 1789. See Bank of the United States v. Deveaux, 5 Cranch 61, 86 (1809). 48 By 1844, however, the Deveaux doctrine was unhesitatingly abandoned:
"[A] corporation created by and doing business in a particular state, is to be deemed to all intents and purposes as a person, although an artificial person, . . . capable of being treated as a citizen of that state, as much as a natural person." Louisville R. Co. v. Letson, 2 How. 497, 558 (1844) (emphasis added), discussed in Globe 752.
And only two years before the debates on the Civil Rights Act, in Cowles v. Mercer County, 7 Wall. 118, 121 (1869), the Letson principle was automatically and without discussion extended to municipal corporations. Under this doctrine, municipal corporations were routinely sued in the federal courts 49 and this fact was well known to Members of Congress. 50
That the "usual" meaning of the word "person" would extend to municipal corporations is also evidenced by an Act of Congress which had been passed only months before the Civil Rights Act was passed. This Act provided that
"in all acts hereafter passed . . . the word `person' may extend and be applied to bodies politic and corporate . . . unless the context shows that such words were intended to be used in a more limited sense." Act of Feb. 25, 1871, 2, 16 Stat. 431.Municipal corporations in 1871 were included within the phrase "bodies politic and corporate" 51 and, accordingly, the "plain meaning" of 1 is that local government bodies were to be included within the ambit of the persons who could be sued under 1 of the Civil Rights Act. Indeed, a Circuit Judge, writing in 1873 in what is apparently the first reported case under 1, read the Dictionary Act in precisely this way in a case involving a corporate plaintiff and a municipal defendant. 52 See Northwestern Fertilizing Co. v. Hyde Park, 18 F. Cas. 393, 394 (No. 10,336) (CC ND Ill. 1873). 53
From OWEN v. CITY OF INDEPEDENCE as well.
[ Footnote 26 ] In actuality, the distinction between a municipality's governmental and proprietary functions is better characterized not as a line, but as a succession of points. In efforts to avoid the often-harsh results occasioned by a literal application of the test, courts frequently created highly artificial and elusive distinctions of their own. The result was that the very same activity might be considered "governmental" in one jurisdiction, and "proprietary" in another. See 18 McQuillin 53.02, at 105. See also W. Prosser, Law of Torts 131, p. 979 (4th ed. 1971) (hereinafter Prosser). As this Court stated, in reference to the "`nongovernmental'-`governmental' quagmire that has long plagued the law of municipal corporations":
"A comparative study of the cases in the forty-eight States will disclose an irreconcilable conflict. More than that, the decisions in each of the States are disharmonious and disclose the inevitable chaos when courts try to apply a rule of law that is inherently unsound." Indian Towing Co. v. United States, 350 U.S. 61, 65 (1955) (on rehearing).
] "While acting in their governmental capacity, municipal corporations proper are given the benefit
of that same rule which is applied to the sovereign power itself, and are
afforded complete immunity from civil responsibility for acts done or omitted,
unless such responsibility is expressly created by statute. When, however, they
are not acting in the exercise of their purely governmental functions, but are
performing duties that pertain to the exercise of those private franchises,
powers, and privileges which belong to them for their own corporate benefit, or
are dealing with property held by them for their own corporate gain or
emolument, then a different rule of liability is applied and they are generally
held responsible for injuries arising from their negligent acts or their
omissions to the same extent as a private corporation under like circumstances."
Williams 4, at 9. See generally 18 McQuillin 53.02, 53.04, 53.24; Prosser 131,
at 977-983; James, Tort Liability of Governmental Units and Their Officers, 22
U. Chi. L. Rev. 610, 611-612, 622-629 (1955).
1. In 1776 Declaration of Independence, the people were acknowledged as the source of authority, i.e. the sovereignty that authorized the Declaration of Independence, then came the 1778 Articles of Confederation. The states that existed by the authority of the people, created those Articles while in Congress assembled.
2. In 1787, the people themselves came forth "to ordain and establish this Constitution for the United States of America" [see Preamble]. On September 17th, 1787, the states held a convention and all those present unanimously joined in. [see last paragraph of U.S. Constitution. in 1787, and the Constitution was born, later to be ratified.
3. PREAMBLE - "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
4. STRUCTURE OF PREAMBLE - TRUSTOR: We the People [Grantors/Trustors/Settlors];
5. VENUE: of the United States;
6. PURPOSE: in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty; BENEFICIARY: to the people and our Posterity,
7. ENABLING ACTION 1: do ordain [declare the law];
8. ENABLING ACTION 2: and establish [bring into existence];
9. WHAT: this Constitution [articles of incorporation for trust];
10. TRUSTEE: for the United States of America. [trustee];
11. ANALYSIS OF PREAMBLE - The Preamble defines the context in which the remainder of the Constitution must be interpreted. Explanation that points to popular sovereignty:
12. After the Declaration of Independence, but before the ordainment and establishment of the Constitution, the people of the United States handled their own affairs using the common law.
13. The people were not subject to any higher authority other than the authority of the common law as administered by the people themselves(self governance). Although the states did exist, they only existed by the authority of the people. Every man was a king, and every woman a queen--and none had any subjects. Upon declaring our independence, we all became sovereigns and members of the peerage (nobility). See: "The people of this State, as the successors of its former sovereign, are entitled to all the rights which formerly belonged to the King by his prerogative. Through the medium of their Legislature they may exercise all the powers which previous to the Revolution could have been exercised either by the King alone, or by him in conjunction with his Parliament; subject only to those restrictions which have been imposed by the Constitution of this State or of the U.S." Lansing v. Smith, 21 D. 89., 4 Wendel 9 (1829) (New York)"D." = Decennial DigestLansing v. Smith, 4 Wend. 9 (N.Y.) (1829), 21 Am.Dec. 8910C Const. Law Sec. 298; 18 C Em.Dom. Sec. 3, 228; 37 C Nav.Wat. Sec. 219; Nuls Sec. 1`67; 48 C Wharves Sec. 3, 7.NOTE: Am.Dec.=American Decision, Wend. = Wendell (N.Y.)
14. The enabling actions in the Preamble are significant because there is simply nothing in the use of those words to imply that the People relinquished any of their own power and authority. The People declared the law (ordain) without taking away from themselves the authority to declare law again in the future. The People established the Constitution without taking away from themselves the authority to establish anything else in the future. The people gave birth to the Constitution without giving up any of their own power and authority.
15. From the context of the Preamble, one may conclude that the laws of the United States do not apply to People. The People, as Grantors, beneficiaries and ordainers as the sovereigns of the country, may not be involuntarily subjected to the laws of the United States.16. Because of Amendment X ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people," the government has no authority, and cannot assume any authority over the People. Government powers may not reach beyond that which is constitutionally granted. In order for the government to subject People to its law it is necessary for the People to relinquish their sovereignty. Sovereignty is a natural right, which cannot lawfully be relinquished involuntarily. Any removal of sovereignty must be accomplished voluntarily by the subject himself.
17. Before ratification of the Amendment XIV , there was no legal definition of the term "citizen of the United States." The term was used, but only generally. After the Civil War the slaves were freed but there was no legal basis to recognize them as having any rights. Amendment XIV partially solved that problem.
18. Amendment XIV created a new class of person called "citizen of the United States." Any ex-slave could now claim citizenship, and, so could any of the People if they so chose to do. BY CONSENT. Amendment XIV made possible the voluntary relinquishment of personal sovereignty.
19. The phrase, "citizens of the United States," is defined in the Constitution for the United States of America, Amendment XIV: Section 1. "All persons (does not include “people”) born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."Section 5. "The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article."
20. STRUCTURE OF AMENDMENT XIV; “WHO”: All persons.(does not include “people”)
QUALIFICATION: (A) born or naturalized in the United States, and (B) subject to the jurisdiction thereof; PURPOSE: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.";
21. ENFORCED BY: The Congress;
22. ENFORCEMENT METHOD: Legislation;
23. QUALITATIVE ANALYSIS OF AMENDMENT XIV;
24. Numerous US Supreme Court case have cited “The People are sovereign and not the governments”. The People are not subject to the jurisdiction of the federal government, even though they are born in the territories of the United States (18 USC 911). Amendment XIV inverts the relationship.
City of Dallas v. Mitchell, 245 S.W. 944, 945-46 (Tex.Civ.App.-Dallas 1922):
"The rights of the individual are not derived from governmental agencies, either municipal, state or federal, or even from the Constitution. They exist inherently in every man, by endowment of the Creator, and are merely reaffirmed in the Constitution, and restricted only to the extent that they have been voluntarily surrendered by the citizenship to the agencies of government. The people's rights are not derived from the government, but the government's authority comes from the people. The Constitution but states again these rights already existing, and when legislative encroachment by the nation, state, or municipality invade these original and permanent rights, it is the duty of the courts to so declare, and to afford the necessary relief.
ONLY THROUGH DELEGATION OR CONSENT - PERIOD
Republican government. One in which the powers of sovereignty are vested in the people and are exercised by the people, either directly, or through representatives chosen by the people, to whom those powers are specially delegated. [In re Duncan, 139 U.S. 449, 11 S.Ct. 573, 35 L.Ed. 219; Minor v. Happersett, 88 U.S. (21 Wall.) 162, 22 L.Ed. 627." Black's Law Dictionary, Fifth Edition, p. 626.]
Pennsylvania, the State of Pennsylvania, and the United States of America have no general sovereignty. Theirs is a clipped sovereignty. Whatever sovereignty they have is limited to their respective constitutionally defined spheres of control. The general sovereignty is reserved to the people without diminishment. Lest that be forgotten, the Pennsylvania Government Code admonishes the public servants that, "The people of this state do not yield their sovereignty to the agencies which serve them." Further, when the State of Pennsylvania did attempt to diminish one's rights, it was determined that the state cannot diminish rights of the people.
Laws, whether organic or ordinary, are either written or unwritten. A written law is that which is promulgated in writing, and of which a record is in existence.
The organic law is the Constitution of Government, and is altogether written. Other written laws are denominated statutes. The written law of this State is therefore contained in its Constitution and statutes, and in the Constitution and statutes of the United States.
Any judicial record may be impeached by evidence of a want of jurisdiction in the Court or judicial officer, of collusion between the parties, or of fraud in the party offering the record, in respect to the proceedings. [28 Cal.2d 251]
The very meaning of 'sovereignty' is that the decree of the sovereign makes law. [American Banana Co. v. United Fruit Co., 29 S.Ct. 511, 513, 213 U.S. 347, 53 L.Ed. 826, 19 Ann.Cas. 1047.]
"...at the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects...with none to govern but themselves" CHISHOLM v. GEORGIA (US) 2 Dall 419, 454, 1 L Ed 440, 455 @DALL 1793 pp471-472
“The people of this State, as the successors of its former sovereign, are entitled to all the rights which formerly belonged to the King by his prerogative. Through the medium of their Legislature they may exercise all the powers which previous to the Revolution could have been exercised either by the King alone, or by him in conjunction with his Parliament;…" Lansing v. Smith, 4 Wendell 9 (N.Y.) (1829), 21 American Decision 89; 10C Const. Law Sec. 298; 18 C Em.Dom. Sec. 3, 228; 37 C Nav.Wat. Sec. 219; Nuls Sec. 1`67; 48 C Wharves Sec. 3, 7.
Pennsylvania Constitution IV. That all power being originally inherent in, and consequently derived from, the people; therefore all officers of government, whether legislative or executive, are their trustees and servants, and at all times accountable to them.
Hertado v. California, 100 US 516
“A corporation, while by fiction of law recognized for some purposes as a person and for purposes of jurisdiction as a citizen, is not endowed with the inalienable rights of a natural person, but it is an artificial person, created and existing only for the convenient transaction of business”. Northern Securities Company v. United States, 193 U.S. 197, 48 L. Ed. 679, 24 S.Ct. 436 (1904).
A certificate is a "paper establishing an ownership claim." - Barron's Dictionary of Banking Terms.
Registration of births began in 1915, by the Bureau of Census, with all states adopting the practice by 1933.
Birth certificates are a form of securities called "warehouse receipts."
-the location of the warehouse where the goods are stored...(residence)
-the date of issue of the receipt.....("Date issued")
See the beloved
"Wizard of Oz"
in a Different light: the truth in plain sight… as an Allegory
Emergency Powers Statutes
In this 1973 official report, the U.S. Senate admits that the Emergency Powers given to the
President under the pretense of the National Emergency of 1933 have remained in
force and that the normal function of the Federal government has been suspended.
Report No. 93-549
EMERGENCY POWERS STATUTES:
PROVISIONS OF FEDERAL LAW NOW IN
EFFECT DELEGATING TO THE EXECUTIVE EXTRAORDINARY AUTHORITY IN TIME OF NATIONAL
EMERGENCY REPORT OF THE SPECIAL COMMITTEE ON THE TERMINATION OF THE NATIONAL
EMERGENCY UNITED STATES SENATE NOVEMBER 19, 1973
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1973
SPECIAL COMMITTEE ON THE TERMINATION OF THE NATIONAL EMERGENCY
These proclamations give force to 470 provisions of Federal law. These hundreds of statutes delegate to the President extraordinary powers, ordinarily exercised by the Congress, which affect the lives of American citizens in a host of all-encompassing manners. This vast range of powers, taken together, confer enough authority to rule the country without reference to normal Constitutional processes.
Under the powers delegated by these statutes, the President may: seize property; organize and control the means of production; seize commodities; assign military forces abroad; institute martial law; seize and control all transportation and communication; regulate the operation of private enterprise; restrict travel; and, in a plethora of particular ways, control the lives of all American citizens.
With the melting of the cold war--the developing detente with the Soviet Union and China, the stable truce of over 20 years duration between North and South Korea, and the end of U.S. involvement in the war in Indochina--there is no present need for the United States Government to continue to function under emergency conditions.
The Special Committee on the Termination of the National Emergency was created (1) to examine the consequences of terminating the declared states of national emergency that now prevail; to recommend what steps the Congress should take to ensure that the termination can be accomplished without adverse effect upon the necessary tasks of governing; and, also, to recommend ways in which the United States can meet future emergency situations with speed and effectiveness but without relinquishment of congressional oversight and control.
In accordance with this mandate, the Special Committee-- in conjunction with the Executive branch, expert constitutional authorities, as well as former high officials of this Government-- is now engaged in a detailed study to determine the most reasonable ways to restore normalcy to the operations of our Government.
A first and necessary step was to bring together the body of statutes, which have been passed by Congress, conferring extraordinary powers upon the Executive branch in times of national emergency.
This has been a most difficult task. Nowhere in the Government, in either the Executive or Legislative branches, did there exist a complete catalog of all emergency statutes. Many were aware that there had been a delegation of an enormous amount of power but, of how much power, no one knew. In order to correct this situation, the Special Committee staff was instructed to work with the Executive branch, the Library of Congress, and knowledgeable legal authorities to compile an authoritative list of delegated emergency powers.
This Special Committee study, which contains a list of all provisions of Federal law, except the most trivial, conferring extraordinary powers in time of national emergency, was compiled by the staff under the direction of Staff Director William G. Miller, and Mr. Thomas A. Dine; utilizing the help of the General Accounting Office, the American Law Division of the Library of Congress, the Department of Justice, the Department of Defense, and the Office of Emergency Planning.
The Special Committee is grateful for the assistance provided by Jack. Goldklang of the Office of Legal Counsel, Department of Justice; Lester S. Jayson, the director of the Congressional Research Service of the Library of Congress; Joseph E. Ross, head of the American Law Division of CRS; and especially Raymond Celada of the American Law Division and his able assistants, Charles V. Dale and Grover S. Williams; Paul Armstrong of the General Accounting Office; Linda Lee, Patrick Norton, Roland Moore, William K. Sawyer, Audrey Hatry, Martha Mecham, and David J. Kyte.
The Special Committee will also publish a list of Executive Orders, issued pursuant to statutes brought into force by declared states of emergency, at a later date.
Note 1: S. Res. 9, 93d Cong., 1st Sess.
PROVISIONS OF FEDERAL LAW NOW IN EFFECT DELEGATING TO THE EXECUTIVE EXTRAORDINARY AUTHORITY IN TIME OF NATIONAL EMERGENCY
November 19, 1973.-Ordered to be printed
Mr. MATHIAS (for Mr. CHURCH) as co-chairman of the Special Committee on the Termination of the National Emergency, submitted the following
[Pursuant to S. Res. 9, 93d Cong.]
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 crises, 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.
American political theory of emergency government was derived and enlarged from John Locke, the English political-philosopher whose thought influenced the authors of the Constitution. Locke argued that the threat of national crisis-unforeseen, sudden, and potentially catastrophic-required the creation of broad executive emergency powers to be exercised by the Chief Executive in situations where the legislative authority had not provided a means or procedure of remedy. Referring to emergency power in the 14th chapter of his Second Treatise on Civil Government as "prerogative," Locke suggested that it:
...should be left to the discretion of him that has the executive power...since in some governments the lawmaking power is not always in being and is usually too numerous, and so too slow for the dispatch requisite to executions, and because, also it is impossible to foresee and so by laws to provide for all accidents and necessities that may concern the public, or make such laws as will do no harm, if they are executed with an inflexible rigour on all occasions and upon all persons that may come in their way, therefore there is a latitude left to the executive power to do many things of choice; which the laws do not prescribe.To what extent the Founding Fathers adhered to this view of the executive role in emergencies is a much disputed issue. Whatever their conceptions of this role, its development in practice has been based largely on the manner in which individual President's have viewed their office and its functions. Presidents Theodore Roosevelt and William Howard Taft argued the proper role of the President and, perhaps, their debate best expounds diametrically-opposed philosophies of the presidency. In his autobiography, Roosevelt asserted his "stewardship theory."
My view was that every Executive officer...was a steward of the people bound actively and affirmatively to do all he could for the people and not to content himself with the negative merit of keeping his talents undamaged in a napkin...My belief was that it was not only [the President's] right but his duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws. Under this interpretation of executive power I did and caused to be done many things not previously done by the President and the heads of departments. I did not usurp power but I did greatly broaden the use of executive power. In other words, I acted for the common well being of all our people whenever and whatever measure was necessary, unless prevented by direct constitutional or legislative prohibition.Roosevelt compared this principle of "stewardship" to what he called the Jackson-Lincoln theory, and contrasted it to the theory ascribed to William Howard Taft.
Roosevelt's ideas on the limit of presidential authority and responsibility were vigorously disputed by Taft. In lectures on the presidency--delivered at Columbia University in 1915-1916-Taft responded that: "... the wide field of action that this would give to the Executive one can hardly limit. A President can exercise no power which cannot fairly and reasonably be traced to some specific grant of power." And he cautioned that: "... such specific grants must be either in the Federal Constitution, or in any act of Congress passed in pursuance thereof. There is no undefined residuum of power which he can exercise because it seems to him to be in the public interest."
In recent years, most scholars have interpreted the Roosevelt-Taft dispute in Roosevelt's favor. In the prevailing academic view, Roosevelt is described as "active," "expansionist," and "strong." The historical reality, in fact, does not afford such a sharp distinction either between the actions of these two Presidents, or between their analysis of the problem of emergency powers. Taft, in his concluding remarks to his Columbia lectures, said : "Executive power is limited, so far as it is possible to limit such a power consistent -with that discretion and promptness of action that are essential to preserve the interests of the public in times of emergency or legislative neglect or inaction." Thus, even Taft was disposed to employ emergency power when the need arose, but, he did not wish to go beyond his own narrower, conservative conception of what was meant by constitutional and legal bounds. Thus, the dispute was over where those bounds lay, rather than the nature of the office itself.
Taft's successor, Woodrow Wilson, was no less zealous in observing what he thought the Constitution demanded. Faced with the exigencies of World War I, Wilson found it necessary to expand executive emergency powers enormously. In many respects, this expansion ofpowers in wartime was based on precedents set by Lincoln decades earlier. Unlike Lincoln, however, Wilson relied heavily on Congress for official delegations of authority no matter how broadly these might be.
Wilson's exercise of power in the First World War provided a model for future Presidents and their advisors. During the preparedeness period of 1915-1916, the submarine crisis in the opening months of 1917, and the period of direct involvement of U.S. armed forces from April 1917 to November 1918, Wilson utilized powers as sweeping as Lincoln's. Because governmental agencies were more highly organized and their jurisdictions wider, presidential powers were considerably more effective than ever before. Yet, perhaps, because of Wilson's scrupulous attention to obtaining prior congressional concurrence, there was only one significant congressional challenge to Wilson's wartime measures.
That challenge came in February-March 1917, following the severance of diplomatic relations with Germany. A group of Senators successfully filibustered a bill authorizing the arming of American merchant ships. In response--records American historian Frank Freidel in his book Roosevelt: the Apprenticeship-Assistant Secretary of the Navy Franklin D. Roosevelt found an old statute under which the President could proceed without fresh authorization from Congress. Roosevelt, impatient for action, was irritated because Wilson waited a few days before implementing the statute.
Lincoln had drawn most heavily upon his power as Commander-in-Chief; Wilson exercised emergency power on the basis of old statutes and sweeping new legislation--thus drawing on congressional delegation as a source of authority: The most significant Wilsonian innovations were economic, including a wide array of defense and war agencies, modeled to some extent upon British wartime precedents. In August 1916 just prior to the United States entry into the war, Congress at Wilson's behest established a Council of National Defense-primarily advisory. In 1917, a War Industries Board, also relatively weak, began operating. The ineffectiveness of the economic mobilization led Republicans in Congress-in the winter of 1917-1918 to demand a coalition War Cabinet similar to that in England. Wilson forestalled Congress by proposing legislation delegating him almost total economic power and, even before legislative approval, authorized the War Industries Board to exercise extensive powers. Subsequently Congress enacted Wilson's measure, the Overman Act, in April 1918. Other legislation extended the economic authority of the Government in numerous directions.
Following the allied victory, Wilson relinquished his wartime authority and asked Congress to repeal the emergency statutes, enacted to fight more effectively the war. Only a food-control measure and the 1917 Trading With the Enemy Act were retained. This procedure of terminating emergency powers when the particular emergency itself has, in fact, ended has not been consistently followed by his successors.
The next major development in the use of executive emergency powers came under Franklin D. RooseveIt. The Great Depression had already overtaken the country by the time of Roosevelt's inauguration and confronted him with a totally different crisis. This emergency, unlike those of the past, presented a nonmilitary threat. The Roosevelt administration, however, conceived the economic crisis to be a calamity equally as great as a war and employed the metaphor of war to emphasize the depression's severity. In his inaugural address, Roosevelt said: "I shall ask the Congress for the one remaining instrument to meet the crisis--broad executive power to wage a war against the emergency, as great as the power that would be given me if we were in fact invaded by a foreign foe."
Many of the members of the Roosevelt administration, including F.D.R. himself, were veterans of the economic mobilization of World War I and drew upon their experiences to combat the new situation. The first New Deal agencies, indeed, bore strong resemblance to wartime agencies and many had the term "emergency" in their titles-such as the Federal Emergency Relief Administration and the National Emergency Council.
In his first important official act, Roosevelt proclaimed a National Bank Holiday on the basis of the 1917 Trading With the Enemy Act-itself a wartime delegation of power. New Deal historian William E. Leuchtenburg writes:
When he sent his banking bill to Congress, the House received it with much the same
ardor as it had greeted Woodrow Wilson's war legislation. Speaker Rainey said
the situation reminded him of the late war when "on both sides of this Chamber
the great war measures suggested by the administration were supported with
practical unanimity....Today we are engaged in another war, more serious even in
its character and presenting greater dangers to the Republic."
Beginning with F.D.R., then, extensive use of delegated powers exercised under an aura of crisis has become a dominant aspect of the presidency. Concomitant with this development has been a demeaning of the significance of "emergency." It became a term used to evoke public and congressional approbation, often bearing little actual relation to events. Roosevelt brain-truster, Rexford G. Tugwell, has described the manner in which Roosevelt used declarations of different degrees of emergency:
The "limited emergency" was a creature of Roosevelt's imagination, used to make it seem that he was doing less than he was. He did not want to create any more furor than was necessary. The qualifying adjective had no limiting force. It was purely for public effect. But the finding that an emergency existed opened a whole armory of powers to the Commander-in-Chief, far more than Wilson had had.Roosevelt and his successor, Harry S. Truman, invoked formal states of emergency to justify extensive delegations of authority during actual times of war. The Korean war, however, by the fact of its never having been officially declared a "war" as such by Congress, further diluted the concept of what constituted circumstances sufficiently critical to warrant the delegation of extraordinary authority to the President.
At the end of the Korean war, moreover, the official state of emergency was not terminated. It is not yet terminated. This may be primarily attributed to the continuance of the Cold War atmosphere which, until recent years, made the imminent threat of hostilities an accepted fact of everyday life, with "emergency" the normal state of affairs. In this, what is for all practical purposes, permanent state of emergency, Presidents have exercised numerous powers-most notably under the Trading With the Enemy Act-legitimated by that ongoing state of national emergency. Hundreds of others have lain fallow, there to be exercised at any time, requiring only an order from the President.
Besides the 1933 (1) and Korean war emergencies (2), two other states of declared national emergency remain in existence. On March 23, 1970, confronted by a strike of Postal Service employees, President Nixon declared a national emergency. (3) The following year, on August 15, 1971, Nixon proclaimed another emergency (4) under which he imposed stringent import controls in order to meet an international monetary crisis. Because of its general language, however, that proclamation could serve as sufficient authority to use a substantial proportion of all the emergency statutes now on the books.
Over the course of at least the last 40 years, then, Presidents have had available an enormous-seemingly expanding and never-ending -range of emergency powers. Indeed, at their fullest extent and during the height of a crisis, these "prerogative" powers appear to be virtually unlimited, confirming Locke's perceptions. Because Congress and the public are unaware of the extent of emergency powers, there has never been any notable congressional or public objection made to this state of affairs. Nor have the courts imposed significant limitations.
During the New Deal, the Supreme Court initially struck down much of Roosevelt's emergency economic legislation (Schecter v. United States, 295 U.S. 495). However, political pressures, a change in personnel, and presidential threats of court-packing, soon altered this course of decisions (NLRB v. Jones & Lauqhlin Steel Corp., 301 U.S. 1). Since 1987, the Court has been extremely reluctant to invalidate any congressional delegation of economic powers to the President. It appears that this will not change in the foreseeable future.
In a significant case directly confronting the issue of wartime emergency powers, Youngstown Sheet & Tube Co. v. Sawyer (343 U.S. 579), the Court refused to allow the President to rely upon implied constitutional powers during a crisis. The action at issue involved presidential seizure of steel plants in a manner apparently directly at odds with congressional policy, Justice Black's plurality opinion specifically acknowledges that if Congress delegates powers to the President for use during an emergency those powers are absolutely valid within constitutional restraints on Congress' own power to do so. Concurring opinions appear to agree on this point. It should be noted, therefore, that all statutes in this compilation are precisely these kinds of specific congressional delegations of power.
The 2,000-year-old problem of how a legislative body in a democratic republic may extend extraordinary powers for use by the executive during times of great crisis and dire emergency-but do so in ways assuring both that such necessary powers will be terminated immediately when the emergency has ended and that normal processes will be resumed - has not yet been resolved in this country. Too few are aware of the existence of emergency powers and their extent, and the problem has never been squarely faced.
(B) SUMMARY VIEWS OF THE PRESENT STATUS OF EMERGENCY POWERS STATUTES
A review of the laws passed since the first state of national emergency was declared in 1933, reveals a consistent pattern of lawmaking. It is a pattern showing that the Congress, through its own actions, transferred awesome magnitudes of power to the executive ostensibly to meet the problems of governing effectively in times of great crisis. Since 1933, Congress has passed or recodified over 470 significant statutes delegating to the President powers that had been the prerogative and responsibility of the Congress since the beginning of the Republic. No charge can be sustained that the Executive branch has usurped powers belonging to the Legislative branch; on the contrary, the transfer of power has been in accord with due process of normal legislative procedures.
It is fortunate that at this time that, when the fears and tensions of the cold war are giving way to relative peace and detente is now national policy, Congress can assess the nature, quality, and effect of what has become known as emergency powers legislation. Emergency powers make up a relatively small but important body of statutes-some 470 significant provisions of law out of the total of tens of thousands that have been passed or recodified since 1933. But emergency powers laws are of such significance to civil liberties, to the operation of domestic and foreign commerce, and the general functioning of the U.S. Government, that, in microcosm, they reflect dominant trends in the political, economic, and judicial life in the United States.
A number of conclusions can be drawn from the Special Committee's study and analysis of emergency powers laws now in effect. Congress has in most important respects, except for the final action of floor debate and the formal passage of bills, permitted the Executive branch to draft and in large measure to "make the laws." This has occurred despite the constitutional responsibility conferred on Congress by Article I Section 8 of the Constitution which states that it is Congress that "makes all Laws..."
Most of the statutes pertaining to emergency powers were passed in times of extreme crisis. Bills drafted in the Executive branch were sent to Congress by the President and, in the case of the most significant laws that ate on the books, were approved with only the most perfunctory committee review and virtually no consideration of their effect on civil liberties or the delicate structure of the U.S. Government of divided powers. For example, the economic measures that were passed in 1933 pursuant to the proclamation of March 5, 1933, by President Roosevelt, asserting that a state of national emergency now existed, were enacted in the most turbulent circumstances. There was a total of only 8 hours of debate in both houses. There were no committee reports; indeed, only one copy of the bill was available an the floor.
This pattern of hasty and inadequate consideration was repeated during World War II when another group of laws with vitally significant and far reaching implications was passed. It was repeated during the Korean war and, again, in most recent memory, during the debate on the Tonkin Gulf Resolution passed on August 6, 1064.
On occasion, legislative history shows that during the limited debates that did take place, a few, but very few, objections were raised by Senators and Congressmen that expressed serious concerns about the lack of provision for congressional oversight. Their speeches raised great doubts about the wisdom of giving such open-ended authority to the President, with no practical procedural means to withdraw that authority once the time of emergency had passed.
For example, one of the very first provisions passed in 1988 was the Emergency Banking Act based upon Section 5(b) of the Trading With the Enemy Act of 1917. The provisions gave to President Roosevelt, with the full approval of the Congress, the authority to control major aspects of the economy, an authority which had formerly been reserved to the Congress. A portion of that provision, still in force, is quoted here to illustrate the kind of open-ended authority Congress has given to the President during the past 40 years:
(b)(1) During the time of war or during any other period of national emergency declared
by the President, the President may, through any agency that he may designate,
or otherwise, and under such rules and regulations as he may prescribe, by means
of instructions, licenses, or otherwise-
(A) investigate, regulate, or prohibit, any transactions in foreign exchange,
transfers of credit or payments between, by, through, or to any banking
institution, and the importing, exporting, hoarding, melting, or earmarking of
gold or silver coin or bullion, currency or securities, and
by any person, or with respect to any property, subject to the jurisdiction of the
United States; and any property or interest of any foreign country or national
thereof shall vest, when, as, and upon the terms, directed be the President, in
such agency or person as may be designated from time to time by the President,
and upon such terms and conditions as the President may prescribe such interest
or property shall be held, used, administered, liquidated, sold, or otherwise
dealt with in the interest of and for the benefit of the United States, and such
designated agency or person may perform any and all acts incident to the
accomplishment or furtherance of these purposes; and the President shall, in the
manner hereinabove provided, require any person to keep a full record of, and to
furnish under oath, in the form of reports or otherwise, complete information
relative to any act or transaction referred to in this subdivision either
before, during, or after the completion thereof, or relative to any interest in
foreign property, or relative to any property in which any foreign country or
any national thereof has or has had anger interest, or as may be otherwise
necessary to enforce the provisions of this subdivision, and in any case in
which a report could be required, the President may, in the manner hereinabove
provided, receive the production, or if necessary to the national security or
defense, the seizure, of any books of account, records, contracts, letters.
memoranda. or other papers, in the custody or control of such person; and the
President, may, in the manner hereinabove provided, take other and further
measures not inconsistent herewith for the enforcement of this subdivision.
(2) Any payment, conveyance, transfer, assignment, or delivery of property or interest
therein, made to or for the account of the United States, or as otherwise
directed, pursuant to this subdivision or any rule, regulation, instruction, or
direction issued hereunder shall to the extent thereof be a full acquittance and
discharge for all purposes of the obligation of the person making the same; and
no person shall be held liable in any court for or in respect to anything done
or omitted in good faith in connection with the administration of, or in
pursuance of and in reliance on, this subdivision, or any rule, regulation,
instruction, or direction issued hereunder.
(A) investigate, regulate, or prohibit, any transactions in foreign exchange,
transfers of credit or payments between, by, through, or to any banking
institution, and the importing, exporting, hoarding, melting, or earmarking of
gold or silver coin or bullion, currency or securities, and
by any person, or with respect to any property, subject to the jurisdiction of the United States; and any property or interest of any foreign country or national thereof shall vest, when, as, and upon the terms, directed be the President, in such agency or person as may be designated from time to time by the President, and upon such terms and conditions as the President may prescribe such interest or property shall be held, used, administered, liquidated, sold, or otherwise dealt with in the interest of and for the benefit of the United States, and such designated agency or person may perform any and all acts incident to the accomplishment or furtherance of these purposes; and the President shall, in the manner hereinabove provided, require any person to keep a full record of, and to furnish under oath, in the form of reports or otherwise, complete information relative to any act or transaction referred to in this subdivision either before, during, or after the completion thereof, or relative to any interest in foreign property, or relative to any property in which any foreign country or any national thereof has or has had anger interest, or as may be otherwise necessary to enforce the provisions of this subdivision, and in any case in which a report could be required, the President may, in the manner hereinabove provided, receive the production, or if necessary to the national security or defense, the seizure, of any books of account, records, contracts, letters. memoranda. or other papers, in the custody or control of such person; and the President, may, in the manner hereinabove provided, take other and further measures not inconsistent herewith for the enforcement of this subdivision.
(2) Any payment, conveyance, transfer, assignment, or delivery of property or interest therein, made to or for the account of the United States, or as otherwise directed, pursuant to this subdivision or any rule, regulation, instruction, or direction issued hereunder shall to the extent thereof be a full acquittance and discharge for all purposes of the obligation of the person making the same; and no person shall be held liable in any court for or in respect to anything done or omitted in good faith in connection with the administration of, or in pursuance of and in reliance on, this subdivision, or any rule, regulation, instruction, or direction issued hereunder.
To cite two further examples:
(a) Upon the application of the country concerned, the President, whenever he considers it in
the public interest, may detail members of the Army, Navy, Air Force, and Marine
Corps to assist in military matters-
The Defense Department, in answer to inquiries by the Special Committee concerning this provision, has stated that it has only been used with regard to Latin America, and interprets its applicability as being limited to noncombatant advisers. However, the language of Section 712 is wide open to other interpretations. It could be construed as a way of extending considerable military assistance to any foreign country. Since Congress has delegated this power, arguments could be made against the need for further congressional concurrence in a, time of national emergency.
The repeal of almost all of the Emergency Detention Act of 1950 was a constructive and necessary step, but the following provision remains:
18. U.S.C. 1383. Restrictions in military areas and zones.
18 U.S.C. 1383 does not appear on its face to be an emergency power. It was used as the basis for internment of Japanese-Americans in World War II. Although it seems to be cast as a permanent power,the legislative history of the section shows that the statute was intended as a World War II emergency power only, and was not to apply in "normal" peacetime circumstances. Two years ago, the Emergency Detention Act was repealed, yet 18 U.S.C. 1383 has almost the same effect.
Another pertinent question among many, that the Special Committee's work has revealed, concerns the statutory authority for domestic surveillance by the FBI. According to some experts, the authority for domestic surveillance appears to be based upon an Executive Order issued by President Roosevelt during an emergency period. If it is correct that no firm statutory authority exists, then it is reasonable to suggest that the appropriate committees enact proper statutory authority for the FBI with adequate provision for oversight by Congress.
What these examples suggest and what the magnitude of emergency powers affirm is that most of these laws do not provide for congressional oversight or termination. There are two reasons which can be adduced as to why this is so. First, few, if any, foresaw that the temporary states of emergency declared in 1938, 1939, 1941, 1950, 1970, and 1971 would become what are now regarded collectively as virtually permanent states of emergency (the 1939 and 1941 emergencies were terminated in 1952). Forty years can, in no way, be defined as a temporary emergency. Second, the various administrations who drafted these laws for a variety of reasons were understandably not concerned about providing for congressional review, oversight, or termination of these delegated power's which gave the President enormous powers and flexibility to use those powers.
The intense anxiety and sense of crisis was contained in the rhetoric of Truman's 1050 proclamation:
Whereas recent events in Korea and elsewhere constitute a grave threat to the peace of
the world and imperil the efforts of this country and those of the United
Nations to prevent aggression and armed conflict;
Now, therefore, I, Harry S. Truman, President of the United States of America, do
proclaim the existence of a national emergency, which requires that the
military, naval, air, and civilian defenses of this country be strengthened as
speedily as possible to the end that we may be able to repel any and all threats
against our national security and to fulfill our responsibilities in the efforts
being made through the United Nations and otherwise to bring about lasting
In witness whereof, I have hereunto set my hand and caused the Seal of the United
States of America to be affixed. Done at the City of Washington this 16th day of
December (10:90 a.m.) in the year of our Lord nineteen hundred and fifty, and of
the Independence of the United States of America the one hundred and seventy-fifth.
Now, therefore, I, Harry S. Truman, President of the United States of America, do
proclaim the existence of a national emergency, which requires that the
military, naval, air, and civilian defenses of this country be strengthened as
speedily as possible to the end that we may be able to repel any and all threats
against our national security and to fulfill our responsibilities in the efforts
being made through the United Nations and otherwise to bring about lasting
In witness whereof, I have hereunto set my hand and caused the Seal of the United States of America to be affixed. Done at the City of Washington this 16th day of December (10:90 a.m.) in the year of our Lord nineteen hundred and fifty, and of the Independence of the United States of America the one hundred and seventy-fifth.
In the view of the Special Committee, an emergency does not now exist. Congress, therefore, should act in the near future to terminate officially the states of national emergency now in effect.
At the same time, the Special Committee is of the view that it is essential to provide the means for the Executive to act effectively in an emergency. It is reasonable to have a body of laws in readiness to delegate to the President extraordinary powers to use in times of real national emergency. The portion of the concurring opinion given by Justice Jackson in the Youngstown Steel case with regard to emergency powers provides sound and pertinent guidelines for the maintenance of such a body of emergency laws kept in readiness to be used in times of extreme crisis. Justice Jackson, supporting the majority opinion that the "President's power must stem either from an act of Congress or from the Constitution itself" wrote:
The appeal, however, that we declare the existence of inherent powers ex necessitate
to meet an emergency asks us to do what many think would be wise, although it is
something the forefathers omitted. They knew what emergencies were, knew the
pressures they engender for authoritative action, knew, too, how they afford a
ready pretext for usurpation. We may also suspect that they suspected that
emergency powers would tend to kindle emergencies. Aside from suspension of the
privilege of the writ of habeas corpus in time of rebellion or invasion, when
the public safety may require it, they made no express provision for exercise of
extraordinary authority because of a crisis. I do not think we rightfully may so
amend their work, and, if we could, I am not convinced it would be wise to do
so, although many modern nations have forthrightly recognized that war and
economic crises may upset the normal balance between liberty and authority.
Their experience with emergency powers may not be irrelevant to the argument
here that we should say that the Executive, of his own volition, can invest
himself with undefined emergency powers.
Germany, after the First World War, framed the Weimar Constitution, designed to secure
her liberties in the Western tradition. However, the President of the Republic,
without concurrence of the Reichstag, was empowered temporarily to suspend any
or all individual rights if public safety and order were seriously disturbed or
endangered. This proved a temptation to every government, whatever its shade of
opinion, and in 13 years suspension of rights was invoked on more than 250
occasions. Finally, Hitler persuaded President Von Hindenburg to suspend ail
such rights, and they were never restored.
The French Republic provided for a very different kind of emergency government known
as the "state of seige." It differed from the German emergency dictatorship
particularly in that emergency powers could not be assumed at will by the
Executive but could only be granted as a parliamentary measure. And it did not,
as in Germany, result in a suspension or abrogation of law but was a legal
institution governed by special legal rules and terminable by parliamentary authority.
Great Britain also has fought both World Wars under a sort of temporary dictatorship
created by legislation. As Parliament is not bound by written constitutional
limitations, it established a crisis government simply by delegation to its
Ministers of a larger measure than usual of its own un1imited power, which is
exercised under its supervision by Ministers whom it may dismiss, This has been
called the "high-water mark in the voluntary surrender of liberty," but, as
Churchill put it, "Parliament stands custodian of these surrendered liberties,
and its most sacred duty will be to restore them in their fullness when victory
has crowned our exertions and our perseverance." Thus, parliamentary controls
made emergency powers compatible with freedom.
This contemporary foreign experience may be inconclusive as to the wisdom of lodging
emergency powers somewhere in a modern government. But it suggests that
emergency powers are consistent with free government only when their control is
lodged elsewhere than in the Executive who exercises them. That is the safeguard
that would be nullified by our adoption of the "inherent pointers" formula.
Nothing in my experience convinces me that such risks are warranted by any real
necessity, although such powers would, of course, be an executive convenience.
In the practical working of our Government we already have evolved a technique within
the framework of the Constitution by which normal executive powers may be
considerably expanded to meet an emergency, Congress may and has granted
extraordinary authorities which lie dormant in normal times but may be called
into play by the Executive in war or upon proclamation of a national emergency.
In 1939, upon congressional request, the Attorney General listed ninety-nine
such separate statutory grants by Congress of emergency or wartime executive
powers. They were invoked from time to time as need appeared. Under this
procedure we retain Government by law-special, temporary law, perhaps, but law
nonetheless. The public may know the extent and limitations of the powers that
can be asserted, and persons affected may be informed from the statute of their rights and duties.
In view of the ease, expedition and safety with which Congress can grant and has granted
large emergency powers, certainly ample to embrace this crisis, I am quite
unimpressed with the argument that we should affirm possession of them without
statute. Such power either has no beginning or it has no end, If it exists, it
need submit to no legal restraint. I am not alarmed that it would plunge us
straightway into dictatorship, but it is at least a step in that wrong direction.
Germany, after the First World War, framed the Weimar Constitution, designed to secure her liberties in the Western tradition. However, the President of the Republic, without concurrence of the Reichstag, was empowered temporarily to suspend any or all individual rights if public safety and order were seriously disturbed or endangered. This proved a temptation to every government, whatever its shade of opinion, and in 13 years suspension of rights was invoked on more than 250 occasions. Finally, Hitler persuaded President Von Hindenburg to suspend ail such rights, and they were never restored.
The French Republic provided for a very different kind of emergency government known as the "state of seige." It differed from the German emergency dictatorship particularly in that emergency powers could not be assumed at will by the Executive but could only be granted as a parliamentary measure. And it did not, as in Germany, result in a suspension or abrogation of law but was a legal institution governed by special legal rules and terminable by parliamentary authority.
Great Britain also has fought both World Wars under a sort of temporary dictatorship created by legislation. As Parliament is not bound by written constitutional limitations, it established a crisis government simply by delegation to its Ministers of a larger measure than usual of its own un1imited power, which is exercised under its supervision by Ministers whom it may dismiss, This has been called the "high-water mark in the voluntary surrender of liberty," but, as Churchill put it, "Parliament stands custodian of these surrendered liberties, and its most sacred duty will be to restore them in their fullness when victory has crowned our exertions and our perseverance." Thus, parliamentary controls made emergency powers compatible with freedom.
This contemporary foreign experience may be inconclusive as to the wisdom of lodging emergency powers somewhere in a modern government. But it suggests that emergency powers are consistent with free government only when their control is lodged elsewhere than in the Executive who exercises them. That is the safeguard that would be nullified by our adoption of the "inherent pointers" formula.
Nothing in my experience convinces me that such risks are warranted by any real necessity, although such powers would, of course, be an executive convenience.
In the practical working of our Government we already have evolved a technique within the framework of the Constitution by which normal executive powers may be considerably expanded to meet an emergency, Congress may and has granted extraordinary authorities which lie dormant in normal times but may be called into play by the Executive in war or upon proclamation of a national emergency. In 1939, upon congressional request, the Attorney General listed ninety-nine such separate statutory grants by Congress of emergency or wartime executive powers. They were invoked from time to time as need appeared. Under this procedure we retain Government by law-special, temporary law, perhaps, but law nonetheless. The public may know the extent and limitations of the powers that can be asserted, and persons affected may be informed from the statute of their rights and duties.
In view of the ease, expedition and safety with which Congress can grant and has granted large emergency powers, certainly ample to embrace this crisis, I am quite unimpressed with the argument that we should affirm possession of them without statute. Such power either has no beginning or it has no end, If it exists, it need submit to no legal restraint. I am not alarmed that it would plunge us straightway into dictatorship, but it is at least a step in that wrong direction.
24-509 O - 73 - 3
But I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primarily, challenges Congress. If not good law, there was worldly wisdom in the maxim attributed to Napoleon that "The tools belong to the man who can use them." We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.
The essence of our free Government is "leave to live by no man's leave, underneath the law"-to be governed by those impersonal forces which we call law. Our Government is fashioned to fulfill this concept so far as humanly possible. The Executive, except for recommendation and veto, has no legislative power. The executive action we have here originates in the individual will of the President and represents an exercise of authority without law. No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance and the parties affected cannot learn the limit of their rights. We do not know today what powers over labor or property would be claimed to flow from Government possession if we should legalize it, what rights to compensation would be claimed or recognized, or on what contingency it would end. With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.
Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.
With these guidelines and against the background of experience of the last 40 years, the
task that remains for the Special Committee is to determine - in close
cooperation with all the Standing Committees of the Senate and all Departments,
Commissions, and Agencies of the Executive branch - which of the laws now in
force might be of use in a future emergency. Most important, a legislative
formula needs to be devised which will provide a regular and consistent
procedure by which any emergency provisions are called into force. It will also
be necessary to establish a means by which Congress can exercise effective
oversight over such actions as are taken pursuant to a state of national
emergency as well as providing a regular and consistent procedure for the
termination of such grants of authority.
COMPILING THE TEXTS OF EMERGENCY POWER STATUTES
Pursuant to S. Res. 9 of January 6, 1973, the U.S. Senate directed the Special Committee on the Termination of the National Emergency to study and investigate emergency powers legislation now in force.
From the outset of its work, the Special Committee faced the problem of determining, with reasonable accuracy, the number, nature, and extent of emergency statutes passed by Congress since 1933 which delegate extraordinary powers to the President in time of crisis or impending catastrophe. It was evident, initially, that existing listings of executive emergency powers were either out-of-date or inadequate for the Special Committee's purposes. It became apparent, too, that the United States Government has been operating under an unrelieved state of emergency of 40 years' duration. During this period, an enormous body of laws dealing with severe economic crisis and America's response to three wars had been passed by Congress through an almost unnoticed process of gradual accretion.
In the past, the only way to compile a catalog useful to Congress would have required going through every page of the 86 volumes of the Statutes-at-Large. Fortunately, the U.S. Code (1970 edition and one supplement) was put onto computer tapes by the United States Air Force in the so-called LITE System, which is located at a military facility in the State of Colorado. The Special Committee staff, working in conjunction with the Justice Department, the Library of Congress, and the General Accounting Office, devised several programs for computer searches. These programs were based on a wide spectrum of key words and phrases contained in typical provisions of law ,which delegate extraordinary powers. Examples of some trigger words are "national emergency," "war," "national defense," "invasion," "insurrection," etc. These programs, designed to produce a computer printout of all provisions of the U.S. Code that pertain to a state of war or national emergency, resulted in several thousand citations. At this point, the Special Committee staff and the staff of the American Law Division, Library of Congress, went through the printouts, separated out all those provisions of the U.S, Code most relevant to war or national emergency, and weeded out those provisions of a trivial or extremely remote nature. Two separate teams worked on the computer printouts and the results were put together in a third basic list of U.S. Code citations.
To determine legislative intent, the U.S. Code citations were then hand checked against the Statutes-at-Large, the Reports of Standing Committees of the U.S. Senate and House of Representatives and, where applicable, Reports of Senate and House Conferences.
In addition, the laws passed since the publishing of the 1970 Code were checked and relevant citations were added to the master list. The compilation was then checked against existing official catalogs: That of the Department of Defense, "Digest of War and Emergency Legislation Affecting the Department of Defense"; that of the Once of Emergency Planning, "Guide to the Emergency Powers Conferred by Laws in Effect on January 1, 1969"; and, the 1962 House Judiciary Committee synopsis of emergency powers, "Provisions of Federal Law in Effect in Time of National Emergency."
The task of compiling a catalog of emergency powers statutes, therefore, has been immeasurably assisted by use of computers, but computers could not replace the need for a systematic and very laborious hand search of all of the volumes of the U.S. Code, the Statutes-at-Large, and Senate and House Reports. The following compilation is intended to be used as a working list of the most relevant emergency provisions of the law. The Special Committee cannot be certain that every statute that could or may be called into use during a time of war or national emergency is in the following compilation. However, the Special Committee believes that the most significant provisions are herein cataloged.
The compilation is organized as follows:
This is an excellent article by Al Adask, see link below.
By: Al Adask
Several of this blog’s readers were commenting on 14th Amendment citizenship. I respond as follows:
Article 1 Section 2 of The Constitution of The State of Texas declares in part, “All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit.” This tells me two things: 1) That State constitution is a trust; and 2) the “people” of that State are the beneficiaries of that State constitution/trust.
This tells me two things: 1) That State constitution is a trust; and 2) the “people” of that State are the beneficiaries of that State constitution/trust.
From that information, I presume that 1) all constitutions are trust indentures; 2) in every State constitution, the “people” are the beneficiaries; and 3) if you want to claim any of the rights secured by a constitution, you had better not appear in the capacity of a “person,” “inhabitant,” “occupant” or “citizen,” etc.–you’d better expressly claim to a “man made in God’s image” and one of the people of a particular State of the Union.
I also believe the federal Constitution is a trust, but it’s not yet absolutely clear to me if the beneficiaries of the federal Constitution are “We the People” or the individuals States of the Union. It’s also not clear to be that there’s a distinct difference between the “States” and the “People”.
If it’s true that the People are the beneficiaries of the State constitutions, who are the fiduciaries? I can see no answer other than the elected officers, appointed officials, and employees of the government. In short, as originally intended by the Founding Fathers, the people were the beneficiaries and government was the fiduciaries. That makes perfect sense to me.
In the early 1990s, I wrote a number of articles on the “Missing 13th Amendment”. This is an Amendment to the federal Constitution that was almost certainly ratified back about A.D. 1820 but has nevertheless been removed. The purpose of the Amendment was to create a penalty for anyone who accepted an “honor” or “title of nobility”. A “title of nobility” is an advantage or privilege enjoyed by some but prohibited to others. It is an inequality. Titles of nobility are prohibited in the body of the federal Constitution, but there is no specified penalty. The “Missing 13th Amendment” proposed that anyone taking an “honor” or “title of nobility” would be penalized by a loss of citizenship. This loss did not mean that you’d be ejected from the country. It only meant that once you’d lost your “citizenship” you could no longer be a government officer or employee.
In other words, if you lost your citizenship, you lost your standing to become a fiduciary (government officer or employee) under any State of federal constitution/trust.
It therefore seems to me that the words “citizen,” “fiduciary” and “employee” may be roughly synonymous when we talk about government.
But government never wanted to be the people’s fiduciary/servant. Government wanted to rule and in order to do so, it was necessary to reverse the constitutional relationship wherein the people were the beneficiaries (who had virtually all of the rights) and the government officers and employees were the fiduciaries (who had virtually all of the duties and liabilities). In order to rule with abandon, government had to become the beneficiary while the people were subjected to the status of governmental employees, servants, fiduciaries and virtual slaves.
I suspect that the 14th Amendment was designed (or at least evolved to be treated as) as a device for reducing the “persons” and citizens to the status of fiduciaries/ servants/ slaves to the government. Part of the reason for that suspicion is the first sentence of the 14th Amendment which declares, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
If it’s true that under the “Missing 13th Amendment” a loss of citizenship would only make one ineligible to be a government officer or employee, then it follows that “citizenship” (the status of a fiduciary or at least one eligible to become a fiduciary in relation to a State or federal constitution) might be very close reducing a “man” (one of the people) to the status of a “person”/ “citizen”/ “fiduciary”/ “employee” of the United States. The only question would be whether that “person” was also “subject to the jurisdiction” of the United States. If a “person” was both: 1) “born in the United States”; and 2) “subject to the jurisdiction” of the United States, then that “person” would be a citizen/fiduciary of and for the benefit of the “United States”.
Of course, so long as you were within the borders of a State of the Union, you would not normally be “subject to the jurisdiction” of the United States. Thus, within the borders of a State of the Union, it might not be possible to be a “14th Amendment citizen” (fiduciary for the United States). Of course, because the 14th Amendment also declared that such persons who “resided” within a State of the Union would be also be citizens of that State. Of course, it seems possible to me that if you expressly declared yourself to be one of the “people” rather than one of the “persons” resident in a State of the Union you might still be deemed to be a beneficiary of your State’s constitution.
But if the States of the Union could supplanted by territories of the United States, then (under the 14th) evidence of your birth might be sufficient to prove (or at least presume) that you are a citizen/ fiduciary of and for the “United States”. I.e., if you’re not within a State of the Union, but are instead presumed to be acting in a territory (like TX, CA or NY), there is no question about being one of the people (or even a citizen) of a State of the Union. Within the territories, all are subject to the exclusive jurisdiction of Congress and the only determining factor as to whether you are or are not a “citizen/fiduciary” might be your place of birth.
Under the 14th Amendment, as a citizen/fiduciary you would no longer have standing as one of the “people”/beneficiaries of your State or federal constitutions. You might have some civil rights. You might have some administrative rights. You might be entitled to procedural due process. But, as a citizen/fiduciary, you would no longer have standing to claim any of the rights (including the God-given, unalienable Rights) with which the “people” had been previously endowed. You would be a subject and government would be your master.
Additionally, Section 4 of the 14th Amendment reads in part, “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.”
My first question is “shall not be questioned by whom?”
It seems to me that the people/beneficiaries of a trust can question anything about the administration of that trust and the trust’s fiduciaries (in this case the government) are bound to provide an honest answer. On the other hand, the fiduciaries of the trust could be prohibited from questioning anything about the trust’s debts. Insofar as any individual is prohibited from questioning the public debt, that individual would seem to be a fiduciary rather than a beneficiary. The Section 4 prohibition seemingly applies to the “persons“/ “citizens“/ fiduciaries of the United States. If you can’t question the debt, it seems certain that you are also deemed to be a debtor (perhaps even a debtor in bankruptcy). The debtor always stands in the role of fiduciary in relation to the creditor – who is always the beneficiary in relation to the debt and debtor.
I interpret the Section 4 prohibition as further evidence that 14th Amendment “citizens” are deemed to be debtors/fiduciaries of and for the United States government rather than members of the “people” beneficiaries of their State and/or federal constitutions.
If my interpretation is correct, as 14th Amendment citizens, folks are deemed by the government to be little more than servants and arguably slaves.
I don’t doubt that my interpretation is missing many important details and is flawed in some regards. Still, I think this interpretation may be roughly correct and useful in helping to understand the issue of 14th Amendment citizenship.
In essence, I suspect that 14th Amendment citizens don’t truly receive “benefits”–instead, as fiduciaries, they primarily receive duties, obligations, debts and liabilities.