I have been studying the Constitution and U.S. law for most of my life. Granted, I only possess an associates degree and part of a bachelors, but I have studied more than most Ph.D. level Constitutional law students ever read. I always have to laugh when I read what a brainwashed law student has to say about interpretation of the Constitution. I nearly cry when I see what our magistrates have to say about it. There are really only 3 books that one must read to gain a complete understanding of what our most sacred document says: Formation of the Union (Madison papers and others from the convention), Federalist Papers, and the Anti-Federalist Papers. You quickly realize that the Constitution is not open for interpretation. This is why there is a clause for modifying it. Months were spent hashing out the finest details of the wording to give the government exact powers and shape. Our founders formed one of the strongest, most unified governments in history, while maintaining independence of the states. At the time, no other government existed which took its rights from the people. The Magna Carta was given to the people by the King and did little to restrain him. How then did our republic degrade into the cesspool of politics that we see today?
A careful study through the years brings us from a republic, where Presidents and states overturned legislation they disagreed with by not executing it, to one where Presidents passed legislation the Congress wouldn't through executive order and fiat. The Supreme Court maintains a list of notable cases which have been found unconstitutional that provide excellent reference for the person interested in Constitutional law. Perhaps there are some specific laws that can be looked into for a starting point into how we arrived at the mess we have today?
We can look to specific periods in history and find a common theme that is followed when power is grabbed from the people. Many times there are emergencies that have some economic nature so lets start there. The worst economic period in our history was the great depression and a great many new government agencies were created to get us out of it. These started popping up within days of Franklin D. Roosevelt taking office as President. We find that on March 6, 1933 he issued a proclamation that declared there was a state of national emergency and demanded all banks close until their finances and loan policies could be restructured. Congress wouldn't simply let him do this, so on March 9, 1933 he called a special session of Congress to pass what is now called the Emergency Banking Relief Act of 1933 as well as the March 6 declaration of emergency in a single act. Reading it, we find that it granted extraordinary powers to our President and the Secretary of Treasury.
The Emergency Banking Relief Act modified an earlier act that regulated commerce with enemy nations and their nationals during the first World War. The aptly named "Trading With the Enemy Act," TWEA, allowed the President to issue all kinds of regulations with regards to finance with any nation with whom we were at war. It explicitly defined the term enemy, and explicitly excluded American citizens from said regulation. The modifications to it included removing the exclusion for citizens. American citizens weren't defined as belligerents in a war, but they could be regulated as if they were. This is important to remember as the courts have upheld some distinct definitions of war and national emergency which we will cover later. The Federal Reserve Act was also modified to allow the Secretary of Treasury to confiscate gold or silver coin from the citizens during a time of emergency and compensate them with any other form of money he saw fit. The act read that those powers were applicable during "time of war or any other period of national emergency". The Bank Holiday of 1933 which was issued on March 6, 1933 by FDR provided the national emergency to grant those powers to the President. Our banking system had been placed under a wartime power and is codified in the U.S. Code under both Title 12, Chapter 2, Subsection 95, and the Appendix to Title 50, War and National Defense. The modification is as follows:
“During time of war or any other period of national emergency declared by the president, the president may... investigate, regulate, or prohibit, under such rules and regulations as he may prescribe, ...transfers of credit between or payments by banking institutions as defined by the president,... and export, hoarding, melting, and earmarking of gold or silver coin or bullion or currency, by any person within the United States or any place subject to the jurisdiction thereof; 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.”
It becomes abundantly clear that in order to deal with a national banking crisis that our money was nationalized (President given authority over it, as noted above), taken from the people (held), given to the Federal Reserve (sold… in the interest of the U.S.), and replaced with paper (prior to Federal Reserve Notes being issued on March 12,1933 there were gold and silver certificates). What isn't immediately clear is what other power was conferred to the President through this act. We need to look through the statutes that modified these acts, court decisions, and the congressional record to see that. The first place to look are early court cases determining the authority of the TWEA in the fist place. It was first passed on October 6, 1917 during the first World War. The very first sentence in it when reading from the U.S. Code,
“The Trading with the enemy Act was expressly exempted from the operation and effect of Joint Res. Mar. 3, 1921, ch. 136, 41 Stat. 1359, declaring that certain Acts of Congress, joint resolutions, and proclamations should be construed as though the World War had ended and the then present or existing emergency expired,”
explains that though hostilities ended in WWI, the emergency continued. Moving forward to 1921 we find a number of cases regarding this act. Central Union Trust Co. v. Garvan makes it clear that Congress has the powers of seizure during a time of war. Stoehr v. Wallace states
"the Trading With the Enemy Act, originally and as amended, is strictly a war measure, and finds its sanction in the provision empowering Congress "to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water."
Was our banking system re-organized under a wartime emergency? We will need to look to other court cases to determine that.
Black's law dictionary provides a good reference for most legal terms, and "emergency powers" is no exception. It states that our courts have held under Brown v. Bernstein that there is no distinction between a war and a declaration of emergency. Looking into this case we find shocking revelations of just how far the courts have allowed emergency powers to move. This case was tried in 1943 against a beef packer who sold his product against price regulations set by the Office of Price Administration which was established by declaration of emergency by F.D.R. prior to the start of World War 2. Despite the defendant fighting a regulation set by emergency fiat prior to congressional declaration of war, the "court takes judicial notice that a state of war exists". Regarding the TWEA and other cases they found
"In these statutes and in the order in which they are listed the following phrases are used synonymously, "During the existence of war or of a national emergency"; "During time of war or during any other period of national emergency"; "In time of war or threatened war"; "In time of war or when the President shall so direct". The various Acts of Congress authorizing the President to take action in the event of a National Emergency show that congress throughout the years made little or no distinction between a State of National Emergency and a State of War."
The courts decided that because the President thought there were circumstances to declare an emergency that he had powers as if war were actually declared. The courts even made it clear that there were no limits they were willing to set on his powers and that he was free to declare them as he saw fit.
"If it be a limited power, the question arises, by whom is the exigency to be judged of and decided? Is the president the sole and exclusive judge whether the exigency has arisen, or is it to be considered as an open question, upon which every officer to whom the orders of the president are addressed, may decide for himself, and equally open to be contested by every militiaman who shall refuse to obey the orders of the president? We are all of opinion, that the authority to decide whether the exigency has arisen, belongs exclusively to the president, and that his decision is conclusive upon all other persons."
When a President can determine his own emergency and legislate under it we call that a dictatorship.
Now that the precedent for using emergency to pass any needful legislation has been thoroughly discussed, we can look at some of the other laws which have arisen. A particularly prominent law which caused a lot of fighting amongst congressmen as it was passed was the original Agricultural Adjustment Act of May 12, 1933. The congressional records show that Congressman Beck said
"I think of all the damnable heresies that have ever been suggested in connection with the Constitution, the doctrine of emergency is the worst. it means that when Congress declares an emergency, there is no Constitution. This means its death. It is the very doctrine that the German chancellor is invoking today in the dying hours of the parliamentary body of the German republic, namely, that because of an emergency, it should grant to the German chancellor absolute power to pass any law, even though the law contradicts the Constitution of the German republic. Chancellor Hitler is at least frank about it. We pay the Constitution lipservice, but the result is the same." "But the Constitution of the United States, as a restraining influence in keeping the federal government within the carefully prescribed channels of power, is moribund, if not dead. We are witnessing its death-agonies, for when this bill becomes a law, if unhappily it becomes a law, there is no longer any workable Constitution to keep the Congress within the limits of its Constitutional powers."
The unhappy law was found unconstitutional by the Supreme Court in U.S. v. Butler but a nearly identical version passed just 2 years later once the court was under control of the President. Remember, under Brown v. Bernstein the court found it was not their duty to question when the President decided to bypass the Constitution. Congressman Beck's fears came true, the Constitution is dead.
Surely something has been done to stop this. It would be nearly impossible to conceal the fact that our President has dictatorial powers for this long. In fact, in 1973 our Senate was concerned about President Nixon taking full advantage of these powers and formed a committee to review emergency legislation. The Special Committee on National Emergencies and Delegated Emergency Powers wrote Senate Report 93-549. Their findings took up 1200 pages and covered nearly every conceivable power which could be given to an individual. It starts
"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...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."
The committee sent the laws passed under the various emergencies to each agency affected by them and asked whether they should be repealed, continued as emergency legislation, or codified. A great many things that had no Constitutional basis were codified into a permanent law and swept under the rug. When dealing with 4 main emergencies Senator Church of the committee found
"in other words, it would take a joint resolution in which the President would have to concur, so that the termination of these emergencies does now in fact depend on the concurrence of the President...Or the passage over his veto."
While discussing the Constitutionality of these legislative powers they found
"If we are talking about inherent constitutional power, no. I don't think you can either add to or detract from the President's constitutional powers by legislation. You can't do it by definition, in fact."
The Courts had already upheld the powers as legitimate and the Senate had little recourse.
An important thing to know here is that prior to 1936 most of the New Deal legislation was shot down by the courts. U.S. v. Butler explicitly defined what the Constitution called a tax, what powers it granted to the legislature, and what rights the citizen had in asking the court for remediation against unconstitutional laws. A.L.A. Schechter Poultry Corp. v. United States found that
"Congress is not permitted by the Constitution to abdicate, or to transfer to others, the essential legislative functions with which it is vested."
After the threat of a court packing law in 1937 the courts changed their mind. Several cases rewrote the understanding of the Constitution and Erie Railroad Co. v. Tompkins overturned nearly 150 years worth of the Supreme Court trying common law per the 7th Amendment to the Constitution. Erie went so far as to claim
"There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a State whether they be local in their nature or "general," whether they be commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts. Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State. And whether the law of the State shall be declared by its legislature in a statute or by its highest court in a decision is not a matter of federal concern."
Interestingly enough, the federal government's own law of torts was just used by the courts to rule the military beyond the reach of the courts. This set the stage for claiming the Bill of Rights did not apply to our federal courts and basing all future decisions on case law rather than determining constitutionality.
Following the Senate's report, the next session passed a law that limited national emergencies. Public Law 94-412, the National Emergencies Act specifically excluded 4 national emergencies that the special committee found were beyond the power of congress to repeal. Public Law 95-223 Title 1 Amendments to the Trading With the Enemy Act repealed the exclusion of the TWEA and codified it into a permanent state of declared emergency. Superficially it changed the wording so the President only has power during time of war and removed "any other period of national emergency". Keep in mind however that our courts had already found zero distinction between the 2 so the only thing this law did was remove unneeded language. One thing that must happen under the National Emergencies Act is the President must renew the emergency from time to time. Reading the Appendix to Title 50, we find our president has dutifully renewed our emergency since 1976. What is important to remember here is that even though the wording generally says something about renewing an emergency declared under the TWEA, the TWEA IS the emergency and is what is really being continued; the so called emergency declared in the letter of continuation is simply the pretext. The most recent continuation was signed by President Obama September 2011 and continued the TWEA because of the emergency of Cuba.
So just how did all of this start? We can look at the archives of each state and find a proclamation authorizing the President to act outside of prescribed Constitutional bounds. Colorado's states:
"I need not call your attention to the banking crisis which confronts Colorado, as well as every other state in the Union. I have full confidence that you will, acting upon the best advice from National and State leaders, enact without delay emergency legislation to protect the depositors in our banks and aid in bringing about a revival of business activities."
That was just part of a lengthy proclamation issued by the Governor on March 8, 1933. Prior to that, on March 6, the Governor issued a telegram to Admiral Byrd
"Colorado solidly behind President Roosevelt Will issue proclamation and take such other action deemed advisable to help situation."
A telegram from the Governor's Conference that was happening at the same time read
"Complete success of program of simultaneous proclamations by all governors of states..."
We no longer can claim that our states are sovereign to each other, united only by a national government to offer equal protection under the law. We have relinquished those rights and allowed our congress to give legislative power to the President. U.S. v Darby issued a judgement on whether the states now retained 10th Amendment rights in 1941.
"The amendment states but a truism that all is retained which has not been surrendered."
Our courts have given the Executive a de facto control over legislative functions. Some decisions have been reversed but the rulings over emergency powers stands today. As you can see from the quoted federal and state documents, we are living under a dictatorship by every conceivable definition of the word.
Appendix to Title 50 U.S. Code http://uscode.house.gov/pdf/2011/2011usc50a.pdf (Trading With Enemy Act as amended is subsection 5(a))
Emergency Banking Relief Act of 1933 http://www.fame.org/pdf/emergency%20banking%20act%20of%201933.pdf
Central Union Trust Co. v. Garvan http://supreme.justia.com/cases/federal/us/254/554/case.html
Stoehr v. Wallace http://supreme.justia.com/cases/federal/us/255/239/
U.S. v. Butler http://supreme.justia.com/cases/federal/us/297/1/
Brown v. Bernstein http://www.leagle.com/xmlResult.aspx?xmldoc=194377749FSupp728_1589.xml&docbase=CSLWAR1-1950-1985
Acts of Congress Held Unconstitutional In Whole or In Part http://www.gpo.gov/fdsys/pkg/GPO-CONAN-2002/pdf/GPO-CONAN-2002-10.pdf
Schechter Poultry Corp. v. U.S. http://supreme.justia.com/cases/federal/us/295/495/case.html
U.S. v. Darby http://www.law.cornell.edu/supct/html/historics/USSC_CR_0312_0100_ZO.html
Erie Railroad Co. v. Tompkins http://supreme.justia.com/cases/federal/us/304/64/case.html
National Emergencies Act http://uscode.house.gov/download/pls/50C34.txt
Public Law 95-223 http://en.wikisource.org/wiki/Public_Law_95-223
There are no online links to view Senate Report 93-549 or the congressional record of May 12, 1933. They can be found at any federal archive and at most state law libraries. The proclamations issued by state governors can be found in the state archives.
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