Mr. HOBBS. In regard to the termination of hositilities or the emergency or the war, do we have a legal right or a constitutional right, or whatever it may be classified, to pass such a general resolution?

Mr. CUTLER. I haven't given detailed study to the question you ask, Mr. Chairman, but I know of no lack of authority in the Congress to prevent you from doing it if you wish to.

Mr. HOBBS. There is a considerable body of sentiment back of certain questions. The War Powers Act created war powers general and almost unlimited, and considered under the phraseology of the emergency declared by the President, during the period of hostilities, during the war; and then in almost every one of those acts it said that those powers could be exercised during those periods until the President revoked his order to carry out the emergency or until Congress by concurrent resolution enacted legislation to declare an end of the war or of hostilities. If you pass a concurrent resolution declaring this emergency as ended or that the hostilities have ceased or that the war had ended, how is that settled as to any of these war acts or directives?

Mr. CUTLER. My guess would be, sir, that it would require somewhat more detailed specifications than a few simple lines in a resolution. My impression is that it would be necessary to have a rather more specific resolution, but that it would not be impossible to group or subdivide the legislation according to hostilities and the end of the

war.

Mr. HOBBS. Suppose we would phrase the concurrent resolution this way: "Be it resolved that as to H. R.--the emergency declared by the President on such and such a date has ceased; as to these other things it has not ceased"?

Mr. CUTLER. Is seems to me that would be possible. I think it is mechanically feasible to do it along the line you suggest, which I understand would not be very divergent from the first alternative suggested by Mr. Snyder; namely, that specific acts be repealed without general reference to the cessation of the war or the cessation of hostilities.

Mr. HOBBS. Our committee is clear that Congress can repeal any act that it passed.

Mr. CUTLER. Yes, sir.

Mr. HOBBS. The action of one Congress is not binding upon its successor, no matter how far removed or how close; but it seems to us a very doubtful question, as to whether or not we can declare hostilities to have terminated for one purpose and not for another. Mr. CUTLER. Well what I was about to suggest

Mr. HOBBS (interposing). Or the war or the emergency?

Mr. CUTLER. It may be difficult, and that perhaps suggests the advisability of mentioning specific statutes without saying hostilities or the war or emergency had terminated. In other words, a law could be repealed without any reference to the cessation of hostilities and so forth.

Mr. HOBBS. Of course, we realize fully that we can do that.
Mr. CUTLER. Yes.

Mr. HOBBS. That places upon this committee the burden of segregating out of the 448 statutes and directives the ones that should be specifically repealed; and a difficulty that you may not appreciate as keenly as we do is that that runs into jurisdictional questions.

Mr. CUTLER. Yes, sir.

Mr. HOBBS. If we are dealing with the repeal of various statutes primarily, almost certainly there ought to be a delegation. Some should go, we will say, to the Banking and Currency Committee, some should go to the Ways and Means Committee, and some to other committees, and we do not know what the situation is.

Mr. CHELF. That is all the more reason why it should be streamlined.

Mr. HOBBS. We just doubt your theory. This committee, merely because it was the committee which dealt with war powers primarily, should have the authority to repeal acts without reference to the committee from which they logically should have come and within whose jurisdiction they undoubtedly lie. Take, for instance, the Second War Powers Act. We had 15 titles in that act, as I recall it. We extended, I believe, seven or eight of them up to date, but that has come about very largely, and I think probably through this committee, by eliminating the other powers under different titles that were no longer necessary. But if we come to repealing the individual statutes or directives which may be exclusively within the jurisdiction of the committee that might require a hands-off attitude of our committee.

Mr. CUTLER. I can appreciate the point. I think it is a very interesting problem for the Parliamentarian. I would say this, offhand: It seems whichever approach you take, unless you take a blanket approach which I doubt that you will find feasible-whether it be the approach of repeal of specific statutes or the approach of general repeal with specific exceptions, I believe you will have to examine the statutes individually; and in doing so the question you mention would probably arise. So I do not know whether the choice of avenues would solve your question entirely.

Mr. HOBBS. We have done exactly that. We have a report right here before us of every one of these directives, and with the aid of Mr. Emerson, general counsel, Office of War Mobilization, and our own counsel, Mr. Long, and a very efficient clerk and others, we have a complete, detailed record here with respect to every one of those. It isn't that we haven't desired information. The question I wanted to ask you was merely as an attorney recognized by the Government as being entirely familiar with legislation of the character that you have dealt with, that you could help us solve this question.

Mr. CUTLER. Well, Mr. Chairman, I should like to help, certainly, to the extent of my ability. I wonder, however, if any outside attorney is qualified to speak on parliamentary questions as between the committees of Congress. As to the merits of the different avenues which have been mentioned, we do not have all the information that is available to the committee, and what we have done therefore has been to limit ourselves to the problems of our own agency.

Mr. HOBBS. That is exactly what you are doing. You are coming here representing your agency, saying that you want the resolution to include something, including one thing and excluding others. Now we are asking you to address yourself to the legal phase of what you are asking, and to advise us with respect to your particular agency and those measures that you are talking about.

Mr. CUTLER. I am sorry, sir; I thought you were asking the question more broadly. With respect to our own particular statutes, so

long as they are tied, as I believe all the ones I mentioned are, to the First War Powers Act, I think no difficulty exists as to action being taken upon them by this committee. There may be some question as to the Trading With the Enemy Act generally, but I understand that situation has been clarified to the extent that First War Powers Act matters are within this committee's jurisdiction.

Mr. HOBBS. They are, so far as the declaration by concurrent resolution. I think they have qualifications but they no longer obtain, and we doubt very seriously if jurisdiction is still in this committee in regard to an act which might come under another jurisdiction. Mr. CUTLER. The First War Powers Act itself came under the jurisdiction of this committee.

Mr. HOBBS. All the War Powers Acts did.

Mr. CUTLER. Yes, sir.

Mr. HOBBS. But not the regulation of the silver stock pile, and not the control of enemy alien property.

Mr. CUTLER. I want to point out, sir, that the amendments which I read in section 5 (b) of the Trading With the Enemy Act were an integral part of the First War Powers Act as well as of the Trading With the Enemy Act.

Mr. HOBBS. Sure. Maybe I do not make myself clear, but if you think it over I think you will see that there is a problem there.

STATEMENT OF THOMAS I. EMERSON, ESQ., GENERAL COUNSEL, OFFICE OF WAR MOBILIZATION AND RECONVERSION

Mr. EMERSON. May I speak for a minute on this problem?
Mr. HOBBS. Yes.

Mr. EMERSON. I think the issue you have raised, Mr. Chairman, is a very serious one from a legal point of view. It seems to me that a resolution declaring a termination of the war might cast serious doubts upon the legality of those war powers which it was intended to retain. It would depend, of course, to some extent upon the individual statute. There are some statutes in the list which certainly could be sustained, irrespective of the war powers, and that might apply to the winding up of the affairs of the Alien Property Custodian, for instance. I think there are others, however, which pretty clearly are based, insofar as their validity is concerned, upon an exercise of war powers. As to those statutes, if there were a Congressional declaration that the war is over, there is grave doubt that the powers conferred by such statute could continue to be exercised. So it seems to me that it would be most unfortunate for the committee to report out a resolution declaring termination of the war at this time.

Now as far as a resolution is concerned which says the war is terminated for the purposes of certain statutes only, but remains in operation for purposes of other statutes, I think there would be very grave difficulty about that, too; because the question of termination of the war is basically a question of fact. Either the war is in fact terminated or it is not terminated. So I think that it would be very hard to frame a resolution which would terminate the war in respect to some statutes and leave others in operation. For that reason it seems to me that it would be unfortunate for the committee to approach it from the point of view of terminating the war by resolution.

There are other facts which point in the same direction. In view of the considerations which Mr. Snyder stated, it should not be said at this time that the war is terminated. I think also that the passage of resolutions terminating the war, and an effort to retain certain statutes that might need to be retained, even if there is no legal difficulty, would involve certain practical difficulties in view of the fact that this session of Congress is soon to terminate and it might be that some very important legislation would just get lost in the shuffle.

Mr. HOBBS. Wouldn't the same thing apply to the termination of hostilities or the termination of the emergency?

Mr. EMERSON. Yes, sir; it would apply to the termination of hostilities or the termination of the emergency.

Mr. HOBBS. Now what is your opinion with regard to whether or not this committee can take these 400 laws and by one blanket bill kill 390 of them and leave 10 in effect without regard to the jurisdiction of any generally?

Mr. EMERSON. Well, I am not competent to pass on the jurisdiction. of the congressional committees. I certainly can see your problem there, Mr. Chairman. It seems to me clear that this committee has jurisdiction over the resolutions now before it to terminate hostilities or to terminate the emergency or terminate the war; and, of course, the effect would be to terminate 400 of these statutes. On the other hand I can see the problem you certainly would get into if you approached it on an individual basis, and it may be that this should be handled in a different way. It may be that the executive agencies should, under our direction, make recommendations to the various interested committees with respect to each particular statute.

Mr. HOBBS. We are very fortunate to have with us Mr. Michener, the best parliamentarian we could have with respect to those matters or any other matters. We have him sitting in and he will be glad to advise us from time to time.

We just want to invoke your definite thought along that line and if you have any further suggestions, as you usually have, we would appreciate them.

Mr. EMERSON. That is my feeling on it, Mr. Chairman. I think the Department of Justice could give you advice on the legal questions involved.

Mr. SPRINGER. I would like to ask just one or two questions. The chairman of the committee has asked about the termination of hostilities and the termination of the war. Would it be possible to terminate the hostilities and terminate the war without terminating the emergency to clean up the situation that is pending following hostilities and following the actual war?

Mr. EMERSON. I think it would be impossible or impracticable to terminate the war without terminating hostilities.

Mr. SPRINGER. Those two have to go hand in hand.

Mr. EMERSON. Yes, sir; they are closely related. I think hostilities come first. I think that the first step would be termination of hostilities, and then I think the war and the emergency are pretty closely linked together.

Mr. SPRINGER. The emergency would really be during the time of the war and after the actual shooting was over to get things straightened out.

Mr. EMERSON. Yes, sir.

Mr. HOBBS. And before.

Mr. SPRINGER. And before; but what impresses me is that we still have an emergency after the actual shooting war is over.

Mr. EMERSON. That is correct.

Mr. SPRINGER. And that emergency would be sufficient upon which to predicate these special acts, or the extension of these special acts which are necessary to complete this matter during the emergency, would it not?

Mr. EMERSON. Yes; that is true. The emergency includes the postfighting emergency. And the interpretation which the courts have consistently given to the term "war" includes also the period after the actual fighting has stopped. But if the Congress passed a resolution terminating the war, I think there would be danger that the courts might interpret that as meaning also the termination of the emergency because the two periods overlap to some extent in legal theory.

Mr. SPRINGER. In your opinion do you not think that a concurrent resolution should be so drafted that there could be a termination of hostilities and the actual war, but a continuance of the emergency powers in order to clean up the matters which follow; and they are wholly within the provisions of the law?

Mr. EMERSON. Possibly. I would be doubtful of it. I think it would be more clear that you could pass a resolution terminating hostilities without terminating the war or the emergency, but to terminate both hostilities and the war, leaving the emergency, might get you into a little difficulty.

Mr. SPRINGER. If it were properly clarified in the concurrent resolution, it occurs to me that could be done without danger.

Mr. EMERSON. Well it is possible, Mr. Congressman; but then you would be defining war to mean the same thing as hostilities, whereas the legal definition of war has been not only the fighting but the postfighting period. Therefore terminating the war would normally mean terminating the posthostility period also.

I think it would be confusing to do that, in view of what has generally been considered to be the meaning of "war" and "emergency." Mr. HOBBS. It presents a real problem. The committee counsel has just given me the resolution which, of course, you are all familiar with anyhow, and he calls attention to the statute itself which does exactly what you suggest, the termination of the war and hostilities in general. My thought is it was provided generally, but some of the members of the subcommittee contended the number of laws that have been passed here by Executive directives or by delegation of that authority far exceeds those that were passed in World War I and that it presents great difficulty.

Mr. EMERSON. Yes; that is true, Mr. Chairman.

I think there are also some statutes which are not being considered here, the legality of which would be affected if there were a declaration of the termination of the war; for instance, the Stabilization Act and the Price Control Act. Those powers are based upon the exercise of war powers, and an official declaration by Congress that war was over might cast doubt upon the validity of the Price Control Act. The same would be true of the Second War Powers Act which this committee has just recommended be continued.