this very important problem which the chairman has raised, any such parallel?

Mr. BURRUS. Of course, there were many such laws that were enacted before the formal state of war in 1941. The Selective Service Act was passed before 1941.

Mr. HILLINGS. I am speaking of the situation where the question of extending actual wartime powers was actually considered.

Mr. BURRUS. I do not know of any precedent.

Mr. HILLINGS. It may be that this particular situation is a case of first impression, so far as the Congress is concerned.

Mr. BURRUS. With respect to continuing war powers, as far as I

know it is.

Mr. HILLINGS. With that thought in mind, I think the chairman's comment is well taken in that we would be perhaps establishing a very important precedent. I think a brief of that nature would be most helpful.

Mr. FORRESTER. I make this observation. If it is a case of first impressions, then about the only way that we can come to any intelligent conclusion would be to have the benefit of all the reasoning on questions that are to any extent analogous, so that we might, by analogy, try to determine what is the correct rule. It looks as if we are all going to be faced with a question of first impressions.

Mr. HILLINGS. It seems to me also, Mr. Chairman, while we are concerned with each of the various items upon which I know testimony has been continually presented and is to be presented on the various provisions which the joint resolution would cover, in order for us to actually pass on those and to actually take into cognizance the various points of information which have been presented to the committee, I think the basic fundamental question which the chairman has raised would, of course, have to be pretty thoroughly explored and decided before the individual decisions can come.

Mr. FORRESTER. There is another thing that has been suggested that is worthy of consideration, and that is a determination of these problems, and that is what effect the United Nations Charter might have toward broadening these powers.

Mr. HILLINGS. Would you elaborate on that, on your thought of the United Nations question?

Mr. FORRESTER. I was particularly interested in the decision of the California Supreme Court some time ago, where they held a statute in California în conflict with the United Nations Charter and was invalid. The converse could be true. I would like to know, I would like to have the benefit of all the leading advice that I can get as to whether or not the fact that the Senate can sign that charter and it becomes a treaty, would that endow us with more powers dealing from an international standpoint than we at one time possessed?

Mr. HILLINGS. Do you mean particularly in view of the fact that the present military action in which this country is engaged is actually a so-called United Nations action rather than perhaps technically an individual effort of the country itself?

Mr. FORRESTER. The United Nations aspect is hopelessly tied in here, I would say, and certainly has to be given consideration.

Mr. BOGGS. You mean there may not be authority for this kind of a situation under the Constitution of the United States, but somehow or other the United Nations influence enlarges the authority.

Mr. FORRESTER. It could certainly be contended.

Mr. PICKETT. In that connection I don't think there is any question but that the congressional action on the United Nations pertains to the nature of a treaty and the ratification of a treaty. If that be correct, then it is entirely possible we have enlarged upon the scope of the constitutional powers of the Congress and the Executive, by reason of the contents of that treaty. I doubt seriously if we had under our United States Constitution the power to do certain things that we have been doing here and purported to do in this bill at the time we took punitive measures against the Barbary pirates or engaged in the Philippine Insurrection, and the Boxer Rebellion and the Nicaraguan incident and others that were under Executive discretion, where United States forces have been sent overseas.

I wonder if we have not enlarged upon our constitutional powers by some of the contents of that United Nations Charter.

Mr. BURRUS. Possibly I am only repeating myself, but it seems to me that all these items relate to the national defense and are in the interest of the national security, and there is nothing more basic under our Constitution than the power of the Congress to deal with problems of national defense and national security. It seems to me just that fundamental. I realize we are talking in general terms, but I think if we think of that test in application to these individual items, there does not seem to me to be any great danger of Congress going beyond its constitutional authority and power.

Mr. HILLINGS. It is true that these items concern national defense. But actually the very title of the resolution itself refers to national emergency which technically goes beyond a mere defense preparation type of program. I think there is where some of us on the committee particularly are concerned and interested in this new type of approach to continuous national emergency without a congressional declaration of war.

Mr. BURRUS. I certainly should not think that the Nation or the Congress would have to sit quiet and do nothing in the interest or protecting itself against possible wars, or preventing wars, that we would have to wait to enact our statutes until we had a Pearl Harbor or even more than that, until we had a formal declaration of war following a Pearl Harbor.

Mr. HILLINGS. This is the first time so far as I know in the history of our country where we are in a virtual all-out war without congressional action. Of course that action, whether rightly or wronglywe are not debating that point today-that action has been declared by many, including many constitutional lawyers, to be unconstitutional because there was no congressional approval of the order.

Those points, I think, have to be considered. I think that they are very important because we are dealing, perhaps with a situation that may not have a parallel.

Mr. BURRUS. I certainly recognize the problem that you presented. I do not think that is involved here. There may be one item where a similar problem is involved.

Mr. HILLINGS. It is true that this resolution deals with the question of a national emergency. We are concerned with its declaration either by the President or by the Congress. Is that not correct? In other words, the various powers here are not merely powers that would normally arise in peacetime in the development of an adequate defense

program, but are powers that we would be concerned with only at a time of national emergency.

Mr. BURRUS. When Congress declares that a certain dangerous situation arises, then the President shall have power to act in a certain way. Someone has to determine when that factual situation exists. I think the proclamation of the emergency does have that purpose. When it is felt that the emergency is over, then either Congress or the President can declare that that factual situation no longer exists and these powers then end.

Mr. HILLINGS. I know that I for one am very much interested in how long and under what circumstances the Executive is going to be able to provoke, or be able to declare national emergencies to exist and use the special powers that go with it. It seems to me that we have come to a point in our country where we have been living in an almost constant state of emergency. It might very well be that Congress would be interested in reviewing the actual use of emergency powers in this legislation. I can anticipate questions of that nature on the floor of the House if this committee should report out the bill and it should go to the House for general debate.

Mr. BURRUS. Our own committee was very much concerned with that problem. That is the reason that we provided authority for Congress, by concurrent resolution, which does not require the action of the President, to declare a termination of the emergency not only in general but with respect to each particular item in this bill.

Mr. FORRESTER. I might make the statement that so far as I was concerned, and while I was asking about the United Nations' Charter aspect, and I expect probably the reason why the gentleman from Texas and the gentleman from Delaware were asking their questions, is, if my memory is not faulty, I think this record is replete from the beginning up to now that these requests for these powers were based upon the national emergency, national security, and additionally, the carrying out of our commitments to the United Nations. I think I have heard that statement repeatedly. So naturally that challenges the interest of every member of this subcommittee.

Mr. Pickett?

Mr. PICKETT. I think there is no question, gentlemen, that under any circumstances we have the right to permit personnel, employees of the United States Government, service personnel and other persons to bring into the United States certain personal goods and effects duty free. I do not think there is any question about that, whether we are in war or not in war.

But I think there is some serious question whether we have the right to continue in operation or to put in operation, at a time other than a declared state of war, the seizure of the transportation system, or the requisition of domestic or foreign vessels that may be in the waters subject to jurisdiction of the United States, and other things.

While we may be able to be completely and thoroughly satisfied as to this committee's duty and as to the Congress' responsibility and power, I think we ought to have that for the purposes of the record.

Colonel HEARNE. Mr. Pickett, would you say that the Congress does or does not have authority to amend the 1916 act with respect to taking over an operation of systems of transportation so as to provide that that may be done in time of war or in time of national emergency?

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Mr. PICKETT. I do not know whether we do or not, Colonel. I candidly do not. I am just not familiar enough with the authority we have to have an opinion that I would want to rely on myself.

Colonel HEARNE. There are instances in which certain things may be taken over upon a finding of fact that it endangers the public health and security and so forth. That is under another act. This committee assumes that the Congress does have the authority to do as I have mentioned, for instance to amend the 1916 act to provide that it may be done not only in time of war but in time of national emergency.

If that hypothesis is correct, then this particular joint resolution now before the committee is in effect stating that the acts listed therein shall continue in effect for a certain period of time. It is the same thing as if you were to take up each item separately and made separate amendments to them.

Mr. PICKETT. If your assumption is sound in constitutional law, then you would be correct in your conclusion. But I am not prepared to agree or disagree that the assumption is sound. I would say this, assuming it is sound and that we could do it, the question would then arise with me as to whether this Congress ought to do it in view of the fact that it smacks of socialization of the transportation system of this country. That is something that I do not want to be a party to. If our emergency conditions are such, and the state of our national security and preparedness is such that it is imperative and we have the power to continue the seizure of the railroads and to grant to the Executive the power to seize other means of transportation in this country, then that would be one thing, so long as we might properly find that there is an emergency in existence.

But on a permanent basis, I do not want to do it because I do not want to get to the same state of affairs that England and other nations of the world have done. I might add this, that in my judgment we have gone mighty far along the road in many respects already. But that is, of course, not entirely related to the subject matter we are dealing with here, and if you can satisfy this committee that we have that constitutional power, then it becomes purely a question of whether this committee wants to agree with your request for this extending legislation.

Mr. BURRUS. Certainly the views and questions of the committee are going to be of real help to us to prepare such a brief. I can understand why you would want it. We will see that such a brief is prepared.

Mr. HILLINGS. Mr. Chairman, I would also like to point up two other pieces of legislation before the Congress which I think might be affected in some way or another by any decision we might reach here in the course of deciding upon the legislation now before the

committee.

One, of course, is the fact that there is now before the Congress legislation which would prohibit the calling up of certain military reservists by the President unless the Congress declared a national emergency. That would be somewhat contrary to the accepted situation in the Korean war, where the President, by declaring that national emergency, then was able to immediately call reservists. I think it is going to be interesting to look upon that particular question, and I am sure that anything that we say or do in the course of this legislation may have some effect on it.

Secondly, is the fact that the Congress also has before it now legislation which would prevent any action of the United Nations from affecting certain constitutional guaranties which are contained in the Constitution of the United States. There is also legislation which would tend to nullify that Supreme Court decision in California which you mentioned, legislation which would guarantee various internal laws of the United States from being nullified by United Nations action, as perhaps may be the case today.

All of those things are important, and we are blazing a trail in a new field of law. I believe it is important that the committee give very serious consideration to the basic fundamental question which the chairman has previously raised here.

Mr. FORRESTER. Let's take up where we left off yesterday, if there are no further observations, and proceed with the witnesses.

Mr. BURRUS. The first item, to be found on page 16 of document 368, is the Missing Persons Act. That is 1 (a) (12). This was a provision that was enacted to apply during the war with Germany, Italy and Japan, and it authorized pay and allowances of certain missing persons and the movement of dependents and household goods of certain missing, injured or dead military personnel. The legislation is felt to be necessary to insure the settlement of pay accounts of affected individuals and to prevent hardships to dependents of personnel who may become missing in the performance of their official duties. This is an item on which permanent legislation is being prepared:

1 (a) (12) Item 176

MISSING PERSONS ACT (50 U. S. C. APPENDIX 1001-1012, 1014, 1015) “Until the termination of the present war with Germany, Italy, and Japan, and for 12 months thereafter, or until such earlier time as the Congress by concurrent resolution or the President by proclamation may designate," there are authorized: (1) Pay and allowances of certain missing persons; (2) certain administrative action regarding allotments, payments and settlement of accounts of such persons; and (3) movement of dependents and household goods of certain missing, injured, or dead military personnel.

This legislation is necessary to insure the continuance of administrative procedures for the settlement of pay accounts of affected individuals and to prevent hardships to dependents of personnel who may become missing in the performance of their official duties.

The termination of this act would also terminate the last two sentences of section 4 (e) of the Universal Military Training and Service Act. The need for permanent missing-persons legislation is now under study in the Department of Defense.

Section 1001. Definitions.

For the purpose of this Act [sections 1001-1016 of this Appendix]

(a) the term "person" means (1) commissioned officer, warrant officer, enlisted person (including persons selected under the Selective Training and Service Act, as amended), member of the Army or Navy Nurse Corps (female), wherever serving; (2) commissioned officer of the Coast and Geodetic Survey or the Public Health Service; and (3) civilian officers and employees of departments and civilian officers and employees of the United States Naval Government of Guam, during such time as they may be assigned for duty or serving outside the continental limits of the United States or in Alaska, exclusive of part-time or intermittent employees or native labor casually hired on an hourly or per diem basis;

(b) the term "active service" means active service in the Army, Navy, Marine Corps, and Coast Guard of the United States, including active Federal service performed by personnel of the retired and reserve components of these forces, the Coast and Geodetic Survey, the Public Health Service, and active Federal service