CHAPTER 5
EMERGENCY
FEDERAL LEGISLATION
"For nobody can transfer to another more power than he has in himself, and nobody has an absolute power over himself, or over any other, to destroy his own life, or take away the life or property of another." John Locke.
During the 1930's, it was a well settled principle of American Constitutional Law that an emergency does not create a power to legislate on a given subject, but may furnish an occasion for the exercise of already existing power, as Chief Justice Hughes said in the Blaisdell case: Footnote1
"Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved.
"While emergency does not create power, emergency may furnish the occasion for the exercise of power. 'Although an emergency may not call into life a power which has never lived, nevertheless emergency may afford a reason for the exertion of a living power already enjoyed.' Wilson v. New, 243 U.S. 332, 348. The constitutional question presented in the light of an emergency is whether the power possessed embraces the particular exercise of it in response to particular conditions. Thus, the war power of the Federal Government is not created by the emergency of war, but it is a power given to meet that emergency."
If we again examine the theory promulgated by the New Deal strategists, in support of their claim that Roosevelt had authority to act under an emergency power, and Congress in passing Roosevelt's New Deal legislation, had the power to legislate all social and economic issues of the nation, because of the so-called emergency which existed in the country, we begin to see that this theory was not a valid one. Let's examine several decisions from the Supreme Court.
The Block case Footnote2 and the Levy Co. case Footnote3 involved the constitutionality of the so-called Emergency Housing Laws, growing out of the post-war housing condition. The latter case involved a New York law and the former case a District of Columbia statute. The New York law was sustained on the ground that there was a valid exercise of the State "police power," the Court saying:
"In terms the acts involved are 'emergency' statutes, and, designed as they were by the Legislature to promote the health, morality, comfort and peace of the people of the State, they are obviously a resort to the police power to promote the public welfare.
"The warrant for this legislative resort to the police power was the conviction on the part of the State legislators that there existed in the larger cities of the State a social emergency, caused by an insufficient supply of dwelling houses and apartments, so grave that it constituted a serious menace to the health, morality, comfort, and even to the peace of a large part of the people of the State. That such an emergency, if it really existed, would sustain a resort, otherwise valid, to the police power for the purpose of dealing with it cannot be doubted, for, unless relieved, the public welfare would suffer in respects which constitute the primary and undisputed, as well as the most usual basis and justification, for exercise of that power." Footnote4
The District of Columbia statute was sustained on the grounds that the letting of buildings within the District was clothed with a public interest, and affected the workings of the Federal Government.
The so-called Railroad Emergency legislation was passed by Congress at the insistence of President Wilson to correct the imminent danger of a tie-up of the railroads of the country. The railroad employees were demanding an eight hour day with additional wages for overtime. The employers rejected the demand and the employees threatened a general strike at a time when the country was about to engage in war. Congress passed a law substantially embodying the demands of the employees. The Supreme Court in Wilson v. New, Footnote5 declared this act constitutional, holding that; (1) Congress has the undoubted power to regulate interstate commerce, and (2) the business of a common carrier is one affected with a public interest which may be regulated by Congress. Chief Justice White said:
"Nor is it an answer to this view to suggest that the situation was one of emergency, and that the emergency cannot be made the source of a power. The proposition begs the question, since although an emergency may not call into life a power which has never lived, nevertheless emergency may afford a reason for the exertion of a living power already enjoyed." Footnote6
But perhaps the most important case on the question of whether an emergency creates executive or legislative power, is the Blaisdell case. Footnote7 It is important for two reasons; first, it definitely determines that an emergency creates no power to legislate; second, the holding of the case caused the popular impression that Congress had the power in an emergency to pass legislation to protect the health, safety, property and morals of the people, an impression which was erroneous, as will be shown hereafter.
Let's examine the case involving the validity of the Minnesota Mortgage Moratorium Law, which was attacked on the grounds that it was repugnant to the contract clause of the Federal Constitution (Art. I, Sec. 10), and the due process and equal protection of the laws' clauses of the Fourteenth Amendment. The Minnesota State Courts and the United States Supreme Court upheld the statute as one within the "police Power" of the legislature, in an emergency which the legislature had found to exist. Chief Justice Hughes, who delivered the majority opinion, said:
"Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved.
"While emergency does not create power, emergency may furnish the occasion for the exercise of power." Footnote8
The New Deal strategists reliance on the Braisdell case was obviously misplaced. These strategists rationalized that the Blaisdell case gave Roosevelt authority under the emergency power contained in the Constitution to regulate all business activity during this so-called economic and social emergency facing the nation. These strategists failed to study the basic principles of our Federal dual form of Government. They either did not realize or they refused to accept a simple fact of constitutional law known by most attorneys at the time, that a state law may be sustained under the State's "police power," but the Federal Government has no "police power," Congress could not constitutionally pass the same legislation.
It seems clear from the above that the New Deal legislation could not be sustained solely because it was "emergency legislation."
IS THERE A FEDERAL POLICE POWER?
If any principle can be stated unequivocally in American Constitutional Law it is that the Federal Government has no "police powers," but that the "police power" is reserved to the States under our theory of government, and by the Tenth Amendment to the Federal Constitution. This was true in 1933 and it is true today.
The Federal Government is one of special and enumerated powers, and those powers necessarily implied from the granted powers. Footnote9 And the implied power must have a reasonable and substantial connection with the enumerated power upon which it is based. Footnote10
Even the strongly partisan Alexander Hamilton conceded that the Federal Government was one of enumerated powers Footnote11 and an eminent writer on constitutional laws, said:
"The Constitution was, from its very origin, contemplated to be the frame of a National Government, of special and enumerated powers. This is apparent, as will presently be seen from the history of the proceedings of the convention which framed it; and it has formed the admitted basis of all legislative and judicial reasoning upon it ever since it was put in operation, by all those who have been its enemies and opponents." Footnote12
And the Tenth Amendment to the Federal Constitution provides:
The powers not delegated to the United States by the constitution, nor prohibited by the other States, are reserved to the States respectively, or to the people.
At the constitutional convention the question arose as to whether the proposed Federal Government should be granted the "police power." Mr. Gunning Bedford, a delegate from Delaware, moved a resolution to give Congress the power "to legislate in all cases for the general interests of the Union and also in those to which the States are severally incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation," but the resolution was defeated by an overwhelming majority.
Ever since that time the Supreme Court of the United States has consistently held that the Federal Government has no "police power." Footnote13
In the case of Wilkerson v. Rahrer, Footnote14 the Supreme Court said:
"The power of a State to impose restraints and burdens upon persons and property in conservation and promotion of the public health, good order, and prosperity, is a power originally and always belonging to the States, not surrendered by them to the general government, nor directly restrained by the Constitution of the United States, and essentially exclusive.
"In short, it is not to be doubted that the power to make the ordinary regulations of police remains with the individual States, and cannot be assumed by the National Government, and in that respect it is not interfered with by the Fourteenth Amendment."
And in United States v. E.C. Knight Co., Footnote15 Chief Justice Fuller said:
"It cannot be denied that the power of a State to protect the life, health, and property of its citizens and to preserve good order and the public morals, 'the power to govern men and things within the limits of its dominions,' is a power originally and always belonging to the States, nor surrendered by them to the general government, nor directly restrained by the Constitution of the United States, and essentially exclusive.
"It is vital that the independence of the commercial power of the police power, and the delineation between them, however sometimes perplexing, should always be recognized and observed, for while the one furnishes the strongest bond of union, the other is essential to the preservation of the autonomy of the States as required by our dual form of government; and acknowledged evils, however grave and urgent they appear to be, had better be borne, than the risk be run in the effort to suppress them, of more serious consequences by resort to expedient of even doubtful constitutionality."
And in Kansas v. Colorado, Footnote16 counsel urged upon the Supreme Court that Congress had the right to control the whole system of reclaiming arid lands in the State whether owned by the Federal Government or not, on the theory that "all powers which are national in scope must be found vested in the Congress of the United States." But the Court held that the National government is one of enumerated powers and that the above doctrine was in conflict with the Tenth Amendment. The Court said:
"This amendment, which was seemingly adopted with prescience of just such contention as the present, disclosed the widespread fear that the National government might, under the pressure of supposed general welfare, attempt to exercise powers which had not been granted. With equal determination the framers intended that no such assumption should ever find justification in the organic act, and that if, in the future, further powers seemed necessary, they should be granted by the people in the manner they had provided for amending that act. Its (the Tenth Amendment) principal purpose was not the distribution of power between the United States and the States, but a reservation to the people of all the powers not granted." Footnote17
It cannot be doubted that Congress acting within the proper scope of its granted powers may reach the same end in some cases as if they were empowered to legislate by a "police power," and it is no valid objection that the exercise by Congress of its expressly granted powers may be attended by the same consequences as would attend the exercise of a "police power" by a state. Footnote18
And the instances are innumerable wherein Congress has reached the same results under its granted powers as the State might reach under its "police power." But since "police power" is a "term of act" which has a definite meaning in constitutional law there seems no justification for intimating that the Federal Government has a "police power." It seems clear from the above that the Federal Government has no "police power." During the 1930's, the average person was in no mood to study carefully the theory of our Federal form of Government, but the Blaisdell case, upholding the validity of the Minnesota Mortgage Moratorium Act on the ground of the State's "police power," was given great publicity by the press and later used by Roosevelt to mislead the public into believing that the Federal Government had the "police power" to regulate all matters, public and private. Fortunately the Supreme Court in 1935 ruled otherwise.
Home Building & Loan Association v. Blaisdell, 290 U.S. 398 (1934).
Block v. Hurst, 256 U.S. 135 (1921).
Levy Leasing Co. v. Siegel, 258 U.S. 242 (1922).
Id. at 245.
243 U.S. 332 (1917).
Id. at 348.
Note 1, supra.
290 U.S. at 235.
Martin v. Hunter's Lessee, 1 Wheat. 304, 326 (1816); McCulloch v. Maryland, 4 Wheat. 316 (1819).
Keller v. United States, 213 U.S. 138 (1909); Adair v. United States, 208 U.S. 161 (1908).
THE FEDERALIST, No. 84.
I STORY, THE CONSTITUTION (5th ed. 1905) sec 909.
There are many cases which support this statement. Some of the most notable ones are: United States v. De Witt, 9 Wall. 41 (1870); Kansas v. Colorado, 206 U.S. (1907); Hammer v. Dagenhart, 247 U.S. 251 (1918).
140 U.S. 545, 554, 555 (1894).
156 U.S. 1, 11 (1894).
206 U.S. 46 (1907).
Id. at 90.
Hamilton v. Kentucky Distillery & Warehouse Co., 251 U.S. 146 (1919).