(Page 39 of 43) - War, Emergency and Corruption After September 11 authored by Meyers, Peter.

“....Congress may modify, rescind, or render dormant such delegated emergency authority.” Moreover,
“[d]isputes over the constitutionality or legality of the exercise of emergency powers are judicially
reviewable. Indeed, both the judiciary and Congress, as co-equal branches, can restrain the executive
regarding emergency powers. So can public opinion.” Relyea (2001:xxx).
Edward S. Corwin. Total War and the Constitution. New York: Knopf, 1947. pp. 177-8.
cite 50 U.S. 33 & 34...
Consider, for example, the view expressed in President Monroe’s first inaugural address (1817): “[T]he
safety of these States and of everything dear to a free people must depend in an eminent degree on the
militia” and when “invasions [are] too formidable...recourse must be had to the great body of the
people...so organized and trained as to be prepared for any emergency.” With more specific reference
to civil liberties in times of war, cf. Geoffrey R. Stone. Perilous Times: Free Speech in War Time.
(.....2004)
Cf. Rossiter, Clinton. Constitutional Dictatorship: Crisis Government in the Modern Democracies.
Princeton: Princeton University Press (1948:230). It is interesting that Rossiter looks for support for
his views in a work written in the 1890s; cf. Dunning, W.A. Essays on the Civil War and
Reconstruction. New York: MacMillan (1898).

[move cite here from next note?]
On Lincoln’s balancing act between his expanded reliance on his role as Commander-in-Chief and his
Executive role, cf. Corwin (1947:16-22). The shift from the former to the latter, at least with respect to
habeas corpus, came on March 3, 1863, when Congress passed An Act relating to Habeas Corpus, and
regulating judicial proceedings in certain cases — Thirty-seventh Congress, Session III, Chapter 81.
The larger balance constituting this power was again altered when the Supreme Court ruled in Ex Parte
Milligan 71 U.S. 2 (1866). The separate opinion by Chief Justice Chase in this case (see note 103
below) seems to have spurred further congressional action on this score, deriving from and bearing on
what might be called the persistence of the Civil War into the “Reconstruction” period; cf. for example
An Act Amendatory to [the habeas corpus act of 1863], January 22, 1869 ( 40 Cong. Session III, Ch.
13) and An Act to enforce the provisions of the fourteenth amendment..., April 20, 1871 (42 Cong. Ch.
22; 17 Stat. 13).
Cite Rossiter, Constitutional Dictatorship. List executive orders and cite congressional report on the
use of executive orders......
Cf. An act to define, regulate, and punish trading with the enemy...October 6, 1917 (65 P.L. 91; 65
Cong. Ch. 106; 40 Stat. 411; The “McCarran Act” is the Internal Security Act of 1950, cf. especially
Title II, section 100 & 102. [add note on the two Sedition acts.... ]
This gentile Progressive commonplace is from Corwin (1947:177) but, of course, reminiscent of Marx
and the presuppositions which led to the appearance of the sociology of class conflict. It was perhaps
the central self-observation at all levels of American society for half a century beginning in the 1870s.
Note that the general point I develop here — concerning the transformation of Executive power as a
function of an increasingly muddied boundary between war and society — overlaps but is not identical
with the claims made by Schlesinger (1975). He attributes the growth of the “imperial presidency” to
two major structural changes: “the decay of the parties left [the President] in command of the political
scene, and the Keynesian revelation placed him in command of the economy.” (1975:209) However, it
is not just by way of macro-economic policy that the balance of constitutional power shifted within the
relationship joining economy and society with the state. In other words, the developments I describe
precede the Keynesian consensus; once that policy orientation was in place, it was the logic of the Cold
War (as Keynesian policy?) that took command of the scene.
[brecher; strike; list of deployments, GPO document cited at relyea 32 n.115]
Cf political party platforms from 1884 and 1888 in Schlesinger, History of American Political Parties,
5 vols....
An Act to Regulate Commerce, February 4, 1887 (49 Cong. Ch. 104; 24 Stat. 379) set “fair charges” for
railroads on interstate runs. The Department of Labor Acts, June 13, 1888, 50 Cong. Ch. 389; 25 Stat.