Chapter Iv Emergency Powers Over Persons

Constitutional democracies as well as authoritarian states are confronted in time of military crisis with the need for a maximum productive and military effort directed at national survival. Totalitarian nations in their practice of total absorption of the materials and energies of conquered nations, and the Western democracies in their insistence upon “unconditional surrender” have contributed to the transformation of modern war from a struggle for limited objectives to a struggle for survival.

The initial response of Great Britain in the First World War indicated an assumption that war imposed upon a nation the necessity to adapt the machinery of the government, and especially its military arm, to the attainment of victory. Twentieth century wars, like those of the Nineteenth century, were to be fought by the military. In terms of the total national energies, war represented a temporary, localized diversion. Democracies continue to manifest a not necessarily unhealthy predisposition, even in the atomic age, to treat war as a subsidiary effort which should not unduly ripple the accustomed habits and interests of the major segment of the population and economy. War is fought by governments, not by peoples. True, perhaps, in regard to police actions which constitute occasional escape valves for aggressive energies which might otherwise erupt in world war, this aphorism which is maintained as a fiction in time of major war, is a residue of an earlier and simpler age.

However tentative their initial response to World War II, the Western democracies soon came to regard it as imposing the need not simply to adapt governmental structure to the major purpose of victory, but to maintain consistency between the political and economic activities of individuals and this overriding goal. Exercising a frankly coercive power, governments in the Second World War conscripted the energies of individuals. Great Britain imposed a labor draft as well as a military draft. The United States, resisting nationwide demands for conscription of labor, satisfied itself with commanding the military services of individuals. Both countries identified individuals whom, it seemed, could best be integrated in the war effort by being integrated out of it--i.e., potential saboteurs, espionage agents, and the like. However adequate or inadequate the techniques for measuring individual and group loyalty, the measurement was undertaken and thousands found themselves immobilized behind barbed wires.

A person naive in political and human relations or a government facing nascent revolution would resort solely to the technique of command and coercion to secure the adjustment of individual goals and efforts to those of the nation. Thus in the United States many war programs depended upon the offering of incentives or simple exhortation and appeal to individual loyalty for their effectiveness. And, in a democracy it remains true in time of war as in peacetime, that the essential nature of the political process is “the translation of conflict among interest groups into authoritative decision.”

These are the conditions under which statutes and presidential proclamations relating to the mobilization of the human resources of the nation will be discussed.

POSITIVE INTEGRATION

Civilian Labor Force: Notwithstanding the failure of the United States to adopt a form of outright labor conscription in the last war, a number of statutory provisions did attempt to integrate segments of the labor force more closely in the war effort. Those which were primarily repressive in nature--i.e., which principally concerned the imposition of penalties or the prohibition of specified activities--are treated in the second section of this chapter.

In June 1939, Congress set up a program for the training of civil aircraft pilots. The Navy Department Appropriations Act for fiscal 1941 included an emergency fund to enable the President, among other things, to procure and train civilian personnel necessary in connection with the production of critical and essential items of equipment and material and the use or operation of such equipment and material. A month later, Congress authorized the Secretary of War, during the period of any national emergency declared by the President, to employ laborers and mechanics in excess of forty hours per week, at time and one-half for overtime. Another 1940 law suspended during the national emergency statutory provisions imposing the eight hour day for Maritime Commission contractors.