[Deschler's Precedents, Volume 3, Chapters 10 - 14]
[Chapter 13. Powers and Prerogatives of the House]
[B. War Powers]
[§ 9. Pre-World War II Legislative Restrictions on Military Activity]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 1816-1823]
CHAPTER 13
Powers and Prerogatives of the House
B. WAR POWERS
Sec. 9. Pre-World War II Legislative Restrictions on Military Activity
The German invasion of Poland in September of 1939 and the
subsequent declarations of war on Germany by Britain and France
intensified the public debate over United States involvement or support
for its traditional allies in the conflict.
Shortly after the German invasion, the President by proclamation
convened an extraordinary session of Congress to act on neutrality
legislation.(2) Accepting the President's
request,(3) Congress repealed provisions of the Neutrality
Acts of 1935 and 1937 which prohibited shipments of arms and ammunition
to belligerent nations.(4)
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2. See Sec. 12.3, infra, for this proclamation.
3. See Sec. 11.6, infra, for a discussion of the President's address
to a joint session.
4. Sec Sec. 9.1, infra, for the discussion of the Neutrality Act of
1939.
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Congress later authorized the President to provide military
supplies to American republics.(5) The concept of providing
assistance to other nations which originated in the joint resolution
making military assistance available to American republics was extended
beyond the Western Hemisphere. The Lend-Lease Act authorized the
President to direct the manufacture, lease, or loan of military and
naval supplies to ``the government of any country whose defense the
President deems vital to the defense of the United States.''
(6~) This act permitted the United States to supply Britain
and other nations in their struggle against Germany.
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5. See Sec. 9.2, infra, for a discussion of this measure. The
Neutrality Act of 1939 did not apply to American republics.
6. See Sec. 9.3, infra, for a discussion of the Lend-Lease Act.
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At the request of the President, Congress approved the first
peacetime draft in the nation's history, the Selective Service Act of
1940, but prohibited the employment of inducted land forces outside the
Western Hemisphere.~(7~) An identical restriction had been
imposed a month earlier in a joint resolution authorizing the President
to activate reserve and retired military personnel.(8)
Protecting the Western Hemisphere became sig
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nificant in actions preceding American involvement in World War II. The
President justified his actions as in the interest of Western
Hemisphere defense when he acted to acquire British territory in
Newfoundland, Bermuda, and certain Caribbean islands for bases in
exchange for out-of-date American destroyers,(9) and sent
American troops to replace British forces in Iceland.(10)
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7. See Sec. 9.5, infra, for this restriction.
8. See Sec. 9.4, infra, for this resolution.
9. See Sec. 11.7, infra. See also Sec. 3.2, supra, for an opinion of
the Attorney General as to the constitutionality of this action
taken without consulting Congress.
10. See Sec. 11.8, infra, for an announcement of this action.
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Legislation regulating thc economy was enacted prior to and during
World War II. The Priorities Act of May 31, 1941,(11)
empowered the President to allocate any material where necessary to
facilitate the defense effort. The Second War Powers Act
(12) extended this authority. These two acts furnished the
statutory foundation for the extensive system of consumer rationing
administered by the Office of Price Administration, as well as for the
comprehensive control of industrial materials and output which was
exercised by the War Production Board.(13) Under the
Emergency Price Control Act,(14) the Office of Price
Administration regulated the price of almost all commodities, as well
as the rentals for housing accommodations in scores of defense rental
areas. The War Labor Disputes Act (15) permitted the
President to commandeer plants which were closed by strikes. The
Renegotiation Act,(1~6) which the Su
[[Page 1818]]
preme Court found to be a proper exercise of the war powers by
Congress,(17) authorized the government to recover excessive
profits realized on war contracts.
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11. 55 Stat. 236, 77th Cong. 1st Sess. (Pub. L. No. 77-92).
12. 56 Stat. 176, 77th Cong. 2d Sess. (Pub. L. No. 77-507).
13. Constitution of the United States of America: Analysis and
Interpretation, S. Doc. No. 92-82, 92d Cong. 2d Sess. 337
(1973).
14. 56 Stat. 23, 77th Cong. 2d Sess. (Pub. L. No. 77-421).
15. 57 Stat. 163, 78th Cong. 1st Sess. (Pub. L. No. 78-89).
16. The Supreme Court in Lichter v United States, 334 U.S. 742, 745
(1948) stated that the term ``the Renegotiation Act'' included
56 Stat. 226, 77th Cong. 2d Sess. (Pub. L. No. 77-528), the
Sixth Supplemental National Defense Appropriation Act,
sometimes called the First Renegotiation Act; 56 Stat. 798,
801, 77th Cong. 2d Sess. (Pub. L. No. 77-753), the Revenue Act
of 1942, Title VIII, Renegotiation of War Contracts; 57 Stat.
347, 78th Cong. 1st Sess. (Pub. L. No. 78-108), Military
Appropriations Act of 1944; 57 Stat. 564, 78th Cong. 1st Sess.
(Pub. L. No. 78-149), an act to prevent payment of excessive
fees or compensation in connection with the negotiation of war
contracts; 58 Stat. 21, 78-93, 78th Cong. 2d Sess. (Pub. L. No.
78-235), Revenue Act of 1943, Title VII, Renegotiation of War
Contracts, and Title VIII, Repricing of War Contracts.
17. Lichter v United States, 334 U.S. 742
(1948). -------------------
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Neutrality Act
Sec. 9.1 The House and Senate agreed to the conference report on the
Neutrality Act of 1939.
On Nov. 3, 1939, the House by a vote of yeas 243, nays 172, not
voting 14,(18) and the Senate by a vote of yeas 55, nays
24,(19) agreed to the conference report (H. Rept. No. 1475)
on House Joint Resolution 306, the Neutrality Act of 1939, to preserve
the neutrality and peace of the United States and secure the safety of
its citizens and their interests.(20)
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18. 85 Cong. Rec. 1389, 76th Cong. 2d Sess. See also pp. 1381-86, for
the conference report and statement of the conferees.
19. Id. at p. 1356.
20. 22 USC Sec. Sec. 441, 444, 445, 447-451, 453-457; Pub. Res. No. 54,
54 Stat. 4, Ch. 2, H.J. Res. 306, 76th Cong. 2d Sess., approved
Nov. 4, 1939. Neutrality legislation had been approved on Aug.
31, 1935 (Pub. Res. No. 67, 49 Stat. 1081, S.J. Res. 173, 74th
Cong. 1st Sess.), and amended on May 1, 1937 (Pub. Res. No. 27,
50 Stat. 121, S.J. Res. 251, 75th Cong. 1st Sess.).
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The act, which did not apply to any American republic engaged in
war against a non-American state or states, authorized the President to
issue a proclamation naming foreign states as belligerents whenever he
or the Congress by concurrent resolution found that a state of war
existed between foreign states.(1) He was also authorized to
require a bond from the owner or person in command of any domestic or
foreign vessel which he had reason to believe was about to carry out of
a port or from the jurisdiction of the United States, fuel, men, arms,
ammunition, implements of war, supplies, dispatches, or information to
any warship, tender, or supply ship of a belligerent state; and to
promulgate rules and regulations.(2)
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1. See Sec. 12.4, infra, for an example of this kind of proclamation.
2. This provision effectuated a request of the President to repeal
embargo provisions of earlier Neutrality Acts. See Sec. 11.6,
infra, for a discussion of the President's message requesting
the Neutrality Act of 1939.
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It was further provided that where states and areas are named as
being at war in a Presidential proclamation issued pursuant to
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authority granted in the act, no American vessels may lawfully carry
passengers or articles to such states.(3~) Similarly, the
terms of the act provided that no American citizen or vessel may
lawfully proceed into an area designated by the President as a combat
zone.~(4~) Moreover, no American citizen may lawfully travel
on any vessel of any such state and no American merchant vessel engaged
in commerce with any foreign state may lawfully be armed.(5)
And no person in the United States may lawfully engage in certain
financial transactions with any government or any political subdivision
of such states or person acting for or on behalf of such
governments.(6)
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3. This provision, Sec. 2 of the Neutrality Act of 1939, was repealed
by 55 Stat. 764, Ch. 473 Sec. 1, 77th Cong. 1st Sess. (Pub. L.
No. 77-294), approved on Nov. 17, 1941.
4. This provision, Sec. 3 of the Neutrality Act of 1939, was repealed
by 55 Stat. 764, Ch. 473 Sec. 1, 77th Cong. 1st Sess. (Pub. L.
No. 77-294), approved on Nov. 17, 1941.
5. This provision, Sec. 6 of the Neutrality Act of 1939, was repealed
by 55 Stat. 764, Ch. 473 Sec. 2, 77th Cong. 1st Sess. (Pub. L.
No. 77-294), approved Nov. 17, 1941.
6. This provision, Sec. 7 of the Neutrality Act of 1939, was amended
to be inoperative when the United States engages in war. 56
Stat. 95, Ch. 104, 77th Cong. 2d Sess. (Pub. L. No. 77-459),
approved on Feb. 21, 1942.
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The act also provided that no person within the United States may
solicit or receive any contribution for or on behalf of a government,
agency, or instrumentality of such states. Whenever the President
places special restrictions on the use of ports and territorial waters
of the United States, submarines and armed merchant vessels of a
foreign state may not enter or depart from those ports or territorial
waters.(7)
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7. See Sec. 12.5, infra, for such restrictions.
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The act also established the National Munitions Control
Board.(8)
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8. This provision, Sec. 12 of the Neutrality Act of 1939, was repealed
by 68 Stat. 861, Ch. 937, title V Sec. 542(a) (12), 83d Cong.
2d Sess. (Pub. L. No. 83-665, H.R. 9678), approved on Aug. 26,
1954.
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Military Assistance to American Republics
Sec. 9.2 The Senate and House agreed to a joint resolution authorizing
the Secretaries of War and of the Navy to assist the governments of
American republics to increase their military and naval
establishments.
On May 28, 1940, the Senate amended and passed,(9) and
on
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June 5, 1940, the House agreed to Senate amendments and
passed,(10) House Joint Resolution 367, authorizing the
President in his discretion to direct the Secretary of War to
manufacture or otherwise procure coast-defense and antiaircraft
materiel, including ammunition therefor, and to direct the Secretary of
the Navy to construct vessels of war on behalf of any American
republic.(11)
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9. 86 Cong. Rec. 6977, 76th Cong. 3d Sess.
10. Id. at p. 7616. See 85 Cong. Rec. 9861, 76th Cong. 1st Sess., July
24, 1939, for initial House approval of this joint resolution.
11. Pub. Res. No. 83, 54 Stat. 396 (June 15, 1940).
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Lend-Lease Act
Sec. 9.3 The Senate and House agreed to a bill further to promote the
defense of the United States, known as the Lend-Lease Act, which
authorized the President to direct manufacture, lease, and loan of
war supplies to foreign governments.
On Mar. 8, 1941, the Senate by a vote of yeas 60, nays 31, not
voting 4, amended and agreed to,(12) and the House by a vote
of yeas 317, nays 71, present 1, not voting 40,(13) agreed
to Senate amendments and passed, H.R. 1776, further to promote the
defense of the United States, known as the Lend-Lease Act, which
authorized the President to direct manufacture of defense articles for
the government of any country whose defense the President deemed vital
to the def ense of the United States, and to direct the lease or loan
of defense articles. The act was approved in the following language:
(14)
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12. 87 Cong. Rec. 2097. 77th Cong. 1st Sess.
13. Id. at p. 2178. See 87 Cong. Rec. 815, 77th Cong. 1st Sess., Feb.
8, 1941, for initial House approval of this bill by a vote of
yeas 260, nays 165, not voting 6.
14. The text is taken from 55 Stat. 31 (Pub. L. No. 77-11), Mar. 11,
1941.
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Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That this Act may
be cited as ``An Act to Promote the Defense of the United States''.
Sec. 2. As used in this Act--
(a) The term ``defense article'' means--
(1) Any weapon, munition, aircraft, vessel, or boat;
(2) Any machinery, facility, tool, material, or supply
necessary for the manufacture, production, processing, repair,
servicing, or operation of any article described in this
subsection. . . .
Sec. 3. (a) Notwithstanding the provisions of any other law,
the President may, from time to time, when he deems it in the
interest of national defense, authorize the Secretary of War, the
Secretary of the Navy, or the head of any other department or
agency of the Government--
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(1) To manufacture in arsenals, factories, and shipyards under
their jurisdiction, or otherwise procure, to the extent to which
funds are made available therefor, or contracts are authorized from
time to time by the Congress, or both, any defense article for the
government of any country whose defense the President deems vital
to the defense of the United States.
(2) To sell, transfer title to, exchange, lease, lend, or
otherwise dispose of, to any such government any defense article,
but no defense article not manufactured or procured under paragraph
(1) shall in any way be disposed of under this paragraph, except
after consultation with the Chief of Staff of the Army or the Chief
of Naval Operations of the Navy, or both. . . .(15)
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15. See 57 Stat. 2], 25, 78th Cong. 1st Sess. (Pub. L. No. 78-11), for
an amendment to this section.
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(3) To test, inspect, prove, repair, outfit, recondition, or
otherwise to place in good working order, to the extent to which
funds are made available therefor, or contracts are authorized from
time to time by the Congress, or both, any defense article for any
such government, or to procure any or all such services by private
contract. . . .(16)
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16. See 58 Stat. 222, 223, 78th Cong. 2d Sess. (Pub. L. No. 78-304),
for an amendment to this provision.
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(c) After June 30, 1943, or after the passage of a concurrent
resolution by the two Houses before June 30, 1943, which declares
that the powers conferred by or pursuant to subsection (a) are no
longer necessary to promote the defense of the United States,
neither the President nor the head of any department or agency
shall exercise any of the powers conferred by or pursuant to
subsection (a); except that until July 1, 1946, any of such powers
may be exercised to the extent necessary to carry out a contract or
agreement with such a foreign government made before July 1, 1943,
or before the passage of such concurrent resolution, whichever is
the earlier. . . .(17)
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17. See 59 Stat. 52, 79th Cong. 1st Sess. (Pub. L. No. 79-31); 58 Stat.
222, 223, 78th Cong. 2d Sess. (Pub. L. No. 78-304); and 57
Stat. 20, 78th Cong. 1st Sess. (Pub. L. No. 78-9), for
amendments to this provision.
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Sec. 5. (a) The Secretary of War, the Secretary of the Navy, or
the head of any other department or agency of the Government
involved shall, when any such defense article or defense
information is exported, immediately inform the department or
agency designated by the President to administer section 6 of the
Act of July 2, 1940 (54 Stat. 714), of the quantities, character,
value, terms of disposition, and destination of the article and
information so exported.
(b) The President from time to time, but not less frequently
than once every ninety days, shall transmit to the Congress a
report of operations under this Act except such information as he
deems incompatible with the public interest to disclose. Reports
provided for under this subsection shall be transmitted to the
Secretary of the Senate or the Clerk of the House of
Representatives, as the case may be, if the Senate or the House of
Representatives, as the case may be, is not in session.
Sec. 6. (a) There is hereby authorized to be appropriated from
time to
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time, out of any money in the Treasury not otherwise appropriated,
such amounts as may be necessary to carry out the provisions and
accomplish the purposes of this Act.
(b) All money and all property which is converted into money
received under section 3 from any government shall, with the
approval of the Director of the Budget, revert to the respective
appropriation or appropriations out of which funds were expended
with respect to the defense article or defense information for
which such consideration is received, and shall be available for
expenditure for the purpose for which such expended funds were
appropriated by law, during the fiscal year in which such funds are
received and the ensuing fiscal year; but in no event shall any
funds so received be available for expenditure after June 30, 1946.
. . . (18)
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18. See 61 Stat. 449, 450, 80th Cong. 1st Sess. (Pub. L. No. 80-123),
for repeal of this provision which had been amended by 59 Stat.
52, 79th Cong. 1st Sess. (Pub. L. No. 79-31); 58 Stat. 222,
223, 78th Cong. 2d Sess. (Pub. L. No. 78-304); and 57 Stat. 20,
78th Cong. 1st Sess. (Pub. L. No. 78-9).
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Sec. 11. If any provision of this Act or the application of
such provision to any circumstance shall be held invalid, the
validity of the remainder of the Act and the applicability of such
provision to other circumstances shall not be affected thereby.
Reserve Forces Limited to Western Hemisphere
Sec. 9.4 The House and Senate agreed to a provision restricting
employment of reserve components of the United States Army beyond
the limits of the Western Hemisphere in a Senate joint resolution
authorizing the President to activate the reserves.
On Aug. 15, 1940,(19) the House by a vote of yeas 342,
nays 34, not voting 54, agreed to Senate Joint Resolution 286,
authorizing the President to order members and units of reserve
components and retired personnel of the Regular Army into active
military service. The joint resolution, which was passed by the Senate
by a vote of yeas 71, nays 7, on Aug. 8, 1940,(20) and
signed by the President on Aug. 27, 1940, as Public
[[Page 1823]]
Resolution No. 96,(1) contained the following restriction on
use of reserves: (2)
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19. 86 Cong. Rec. 10429, 10448, 10449, 76th Cong. 3d Sess. See also 86
Cong. Rec. 10763, 76th Cong. 3d Sess., Aug. 22, 1940, for House
approval of the conference report.
20. Id. at p. 10068. The Senate by a vote of yeas 31, nays 45, rejected
a motion to recommit the joint resolution with instructions to
report it back forthwith with an amendment substituting
``continental United States and Territories and possessions of
the United States'' in place of the remainder of section 1
beginning with ``Western Hemisphere.'' Id. at pp. 10067, 10068.
See also 86 Cong. Rec. 10791, 76th Cong. 3d Sess., Aug. 23,
1940, for Senate voice vote approval of this measure.
1. See 86 Cong. Rec. 11089, 76th Cong. 3d Sess., Aug. 28, 1940, for
announcement in the Senate of Presidential approval.
2. This excerpt is taken from 54 Stat. 858, 859, 76th Cong. 3d Sess.
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. . . [T]he members and units of the reserve components of the
Army of the United States ordered into active Federal service under
this authority shall not be employed beyond the limits of the
Western Hemisphere except in the territories and possessions of the
United States, including the Philippine Islands.
After commencement of World War II, this provision was
repealed.(3)
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3. See 55 Stat. 799, 77th Cong. 1st Sess. (Pub. L. No. 77-338),
approved Dec. 13, 1941.
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Inducted Land Forces Limited to Western Hemisphere
Sec. 9.5 The House and Senate agreed to a provision restricting
employment of inducted land forces beyond the limits of the Western
Hemisphere in a conference report on the Selective Training and
Service Act of 1940.
On Sept. 14, 1940,(4) the House by a vote of yeas 233,
nays 124, present 2, not voting 70, agreed to a conference report on S.
4164, the Selective Training and Service Act of 1940. This measure,
passed as a conference report by the Senate on a vote of yeas 47, nays
25, on Sept. 14, 1940,(5) and signed by the President on
Sept. 16, 1940, as Public Law No. 783,(6) contained the
following restriction on use of inducted land forces: (7)
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4. 86 Cong. Rec. 12207, 12227, 12228, 76th Cong. 3d Sess.
5. Id. at pp. 12156-61.
6. See 86 Cong. Rec. 12290, 76th Cong. 3d Sess., Sept. 19, 1940, for
announcement in the Senate of Presidential approval.
7. This excerpt is taken from 54 Stat. 885, 886, 76th Cong. 3d Sess.
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(e) Persons inducted into the land forces of the United States
under this Act shall not be employed beyond the limits of the
Western Hemisphere except in the Territories and possessions of the
United States, including the Philippine Islands.
After the commencement of World War II, this provision was
repealed.(8)
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8. See 55 Stat. 799, 77th Cong. 1st Sess. (Pub. L. No. 77-338)
approved Dec. 13, 1941. The House by a vote of 203 yeas, 202
nays, had agreed to H.J. Res. 222, extending the period of
conscription beyond the 12 months established in the Selective
Training and Service Act of 1940. 87 Cong. Rec. 6995, 7074,
7075, 77th Cong. 1st Sess., Aug. 12, 1941.
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