|A Declared State of "National Emergency!"||[Contents]|
Unfortunately, it's not quite that simple.
One of the leading advocates of this theory is Dr. Eugene Schroder. I wrote him to ask him about some of the gaps in his theory.
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Although the rise of the administrative process is often identified with the presidency of Franklin D. Roosevelt, in fact reliance upon administrative agencies to meet emerging national problems long antedates the New Deal. It is as old as the Republic itself. The First Congress of the United States, meeting in 1789, enacted legislation authorizing administrative officers[, and other examples show that t]he administrative process thus has deep roots.In my view, this pretty much destroys the "emergency powers" theory. As you point out, much of Roosevelt's legislation was based on the emergency powers statutes left over from World War I. But note that the Fed predated WWI (1913) and its "Trading with the Enemy" Act. I would say the "Creature from Jekyll Island" is more of a disaster than anything Roosevelt did. But, so far as I can tell, it was not a result of any declared "national emergency." I wrote Adask at the Anti-Shyster and told him that Patriots must not think that just by terminating the "national emergency" that things will be "back to normal" (whatever that is). Any theory that cannot account for the rise of the Federal Reserve Board is not going to be the definitive theory which brings down the Administrative State.
Approximately one-third of the federal administrative agencies were created before 1900, notably the Civil Service Commission in 1883 and the Interstate Commerce Commission in 1887. By 1891, the Pension Office of the Department of the Interior, with six thousand employees and more than a half-million cases pending for adjudication, was, according to its commissioner, the "largest executive bureau in the world." Still another third of the federal agencies were created between 1900 and 1930, notably the Federal Reserve Board in 1913, the Federal Trade Commission in 1914, and the United States Tariff Commission in 1916. During these same decades, many state governments, responding to the influence of the Granger and Progressive movements, created administrative agencies to regulate banking, bridges, canals, ferries, grain elevators, insurance, railroad freight rates, and warehouses.
Reliance upon the administrative process was thus an established practice by the time that Roosevelt became President in 1933.
When Roosevelt took office, the Court was still interpreting the Constitution in such a way as to impose significant restraints on the regulatory activity of the federal government. By the end of the New Deal, however, federal power over economic and social matters had become essentially limitless.Your conclusion seems to be that this change took place because of the acceptance of the "emergency powers" concept. Belknap seems to disagree:
This view, however, is incorrect. The change occurred because the American legal community could not accept the emergency powers doctrine. Several decisions handed down by the Supreme Court during and just after World War I had suggested that a crisis temporarily expanded the sphere of federal power. New Dealers, assuming that a domestic emergency would have the same constitutional significance as a military one, offered the emergency powers doctrine as a constitutional justification for their recovery program. Most lawyers and judges, including the Justices of the Supreme Court, accepted neither the analogy between wars and depressions nor the legal argument based upon it.Belknap shows that Roosevelt's New Deal legislation met with sustained opposition in federal courts. Then Belknap claims that the entire concept of "emergency powers" was repudiated by the Supreme Court, first in Panama Refining Corp. v. Ryan and then more dramatically in A.L.A. Schecter Poultry Corp. v. U.S.
In Schecter, "the NRA attorneys, led by General Counsel Donald Richberg, strongly advocated the use of the 'emergency powers doctrine.'"
The Justices did not accept the government's arguments. . . . Speaking for a unanimous Court, Chief Justice Hughes also dealt a death blow to the emergency powers doctrine. Counsel for the government's opponents relied on [Ex Parte] Milligan, arguing that an "emergency does not increase constitutional power nor diminish constitutional restrictions." Yielding to their appeal, the Chief Justice retreated from the near-endorsement he had given the emergency powers doctrine in [Home Building & Loan Association v.] Blaisdell. "Extraordinary conditions do not create or enlarge constitutional power," he declared. The Court conceded that such conditions might well require extraordinary remedies, but that did not "justify action which lies outside the sphere of constitutional authority." Those who acted under authorization of the Constitution, the Court said, were not free to transcend the limitations upon the power that it granted merely because they believed that more or different power was necessary.I think that Belknap's thesis is probably correct, although your research is still very important. If you haven't worked through Belknap's arguments, I would be happy to send you my analysis. In a nutshell, the Judicial branch and the Legislative-Executive branches disagreed on what kind of theory should serve as window-dressing for their "Administrative State." One said "Emergency Powers," the other said "No reason to suspend the Constitution; let's call it 'Commerce Clause.'" The "Commerce Clause" people seem to have won. But it's just a different name for the same dictatorship.
After Schecter, the emergency powers doctrine appeared to be dead.
(2) While the rest of America was celebrating the bicentennial of the Constitution (1787), the Public Administration Review (organ of the Administrative State) was celebrating the centennial of the ICC. Richard J. Stillman II, "The Constitutional Bicentennial and the Centennial of the American Administrative State." (Symposium: The American Constitution and the Administrative State.) 47 Public Administration Review 4-8 (Jan-Feb 1987). [kc]
(3) J. Freedman, Crisis and Legitimacy 4 (1978).
(4) M. Belknap, "The New Deal and the Emergency Powers Doctrine," 62 Tex. L. Rev. 67 (1983).
(5) Id., at 67-68.
(6) Id., at 94-96.
(7) Panama Refining Corp. v. Ryan, 293 U.S. 388 (1935).
(8) A.L.A. Schecter Poultry Corp. v. U.S., 295 U.S. 495 (1935).
(9) Belknap, at 96.
(10) 71 U.S. (4 Wall.) 2 (1866). See Belknap's discussion of Milligan at 78-79.
(11) 290 U.S. 398 (1934). A good discussion of the hideous Blaisdell case is found in H. Holzer, Sweet Land of Liberty? 42-54 (1983).
(12) Belknap, at 97. I should note that the whole point of Belknap's article is that even though the "emergency powers" doctrine was killed, it should be revived as a useful tool of government policy. Obviously he is not on our wavelength.
(13) Congress simply going along with FDR's plans
(14) Or the "general Welfare" clause (Art. 1, S 8, cl. 1). The Court called their policy one of "judicial restraint."
(15) Belknap, at 103.
(16) M. Ariens, "A Thrice-Told Tale, or Felix the Cat." (Role of Felix Frankfurter in 1937 Constitutional Crisis), 107 Harvard Law Review 620 (1994); G. White, "Felix Frankfurter, the Old Boy Network, and the New Deal: Placement of Elite Lawyers in Public Service in the 1930's (Legal History Symposium), 39 Arkansas Law Rev. 631 (1986); S. Crockett, Frankfurter's Red Record (1961).
(17) Belknap, at 103. (quotation marks added)
(18) I speak of the architects of the "Administrative State." The functionaries of the Administrative State are average Americans. That is to say, they are docile, ignorant of the Constitution, and will do anything if "that's my job." Millions of people take an oath to "support the Constitution" in order to get a government check, ignorant of the fact that the Founding Fathers never intended a majority of people to be getting checks from the government. Covetous ignorance, not some kind of "unique" evil, is the taproot of Naziism.
(19) I like to explain it this way: If you are no big fan of Lyndon Johnson's Great Society, keep in mind that the time interval between Johnson and the Constitution is about the same as that between the Constitution and the Puritans' Mayflower Compact. I believe that as far as America had strayed from the Constitution by LBJ's day, so the Founding Fathers had strayed from the Puritans by 1789. For a much longer explanation, read Gary North's book, Political Polytheism: The Myth of Pluralism (1989). At the end of a rich 800-page historical/theological study, he concludes,
There is no escape from this conclusion: the United States Constitution is an atheistic, humanistic covenant. The law governing the public oath of office reveals this. Unfortunately, this oath is rarely discussed. Christians who do not analyze social and political institutions in terms of the biblical covenant model are not sufficiently alert to this crucial but neglected section of the Constitution. The Constitution is not a Christian covenant document; it is a secular humanist covenant document." (at 403-404)(20) See the Delaware Constitution (1776), Art. 22.
(21) In re Summers, 325 U.S. 561, 65 S.Ct. 1307, 89 L.Ed 1745 (1945); reh. den. 326 U.S. 807, 66 S.Ct. 94, 90 L.Ed. 491 (1945). Most Christians are not aware of this case, and so I do not fault them for having taken the oath. But I know about it. Thus, I am not simply "refusing" to take the oath; under this ruling, I am not permitted by the U.S. Supreme Court to take the oath. I am seeking to have this case and the case of Torcaso v. Watkins 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961) limited.
(22) 283 U.S. 605 (1931). See Belknap at note 223.
(23) 143 U.S. 457 (1892).