...control the price of every commodity bought and sold within the national boundaries; to fix the amount of rent to be charged for every room, home, or building and this even though to an individual landlord there may be less than a fair return; to construct extensive systems of public works; to operate railroads; to prohibit the sale of liquor; to restrict freedom of speech in a manner that would be unwarranted in time of peace; to ration and allocate the distribution of every commodity important to the war effort; to restrict the personal freedom of American citizens by curfew orders and the designation of areas of exclusion; and, finally, to demand of every citizen that he serve in the armed forces of the nation.
Spaulding v. Douglas Aircraft Co., 154 F.2d 419, 422-423 (9th Cir. 1946)
Making Sense of Delegation Cases
The authors of the text raise many theoretical questions about the extent of Congressional power to delegate war powers to the president.
This is wishful thinking, the court has not upheld a constitutional challenge on delegation grounds since 1936.
The standard now is whether Congress has given enough direction so that the court can review the president's or the agency's actions.
If not, the court will find that the delegation fails to transfer the power, not that it is unconstitutional.
Appropriations as Evidence of Authorization for Executive Actions
How do you argue that an appropriation bill is also an authorization bill for specific executive powers?
Why does the modern budget process undermine this assumption?
What do you look to in the appropriations bill to support an authorization argument?
Impoundment - what if the president disagrees with an action of congress and just refuses to spend the money?
What has the United States Supreme Court said about impoundments?
Congressional Limits through Appropriations
Spaulding v. Douglas Aircraft (1945)
Congress in making appropriations has the power and authority not only to designate the purpose of the appropriation, but also the terms and conditions under which the executive department . . . may expend such appropriations. . . .
The purpose of appropriations, the terms and conditions under which said appropriations were made, is a matter solely in the hands of Congress and it is the plain and explicit duty of the executive branch . . . to comply with the same.
Given Chevron, why are limits on appropriations more effective than direct legislation on agency authority?
Proclamation No. 7463, Declaration of National Emergency by Reason of Certain Terrorist Attacks 66 Fed. Reg. 48,199 (Sept. 14, 2001)
What is the legal purpose of this declaration?
What ends a state of national emergency?
What was the Feed and Forage Act of 1861 intended to authorize?
How did Nixon use the Feed and Forage Act of 1861?
When was the national emergency he relied on for contingent authority declared?
What does the National Emergencies Act require?
What does a formal declaration allow Congress to do?
What about regulatory takings, i.e., when someone cannot get paid or complete a business deal because of changes in policy in dealing with a foreign country?
Is this the same as if the government actually took the property for direct use?
Would Truman have had to pay for the costs related to the steel seizure if the court had found that he had the authority for the seizure?
Would the result be different for the seizure of property which is then used by the government?
Stopped here
Investigatory Powers
McGrain v Daugherty, 273 US 135 (1927)
Does the constitution specifically give Congress the power to investigate and force witnesses to testify?
Has congress done this for a long time?
Why does it matter that it has been going on since the beginning?
Who does the enforcement for subpoenas?
Why is this a special problem with executive branch witnesses?
