Section 801 of the Second War Powers Act of 1942 Authorized the

President to direct the assignment of Civilian Conservation Corps manpower to protect the munitions, aircraft, and other war industries, municipal water supply, power, and other utilities, and to protect resources subject to the hazards of forest fires.

Emergency conditions may lead to relaxation of the traditional American rule, based upon the assumption that public employment is a privilege and upon security grounds, that aliens are ineligible for governmental positions--especially positions in the military establishments. In 1946 Congress suspended statutory provisions prohibiting the employment of aliens. Thus the Secretary of the Navy could authorize the Navy Department to employ non-citizens whose special technical or scientific knowledge or experience would be of benefit to the military services of the United States. The wisdom of this legislation may be more readily appreciated when it is remembered that German rocket experts like Dr. Werner von Braun were able to serve in the United States rather than behind the Iron Curtain. Similarly, as illustrated by the Selective Service Act of 1948, effective mobilization of the labor force requires exemption of some specially skilled persons from military conscription. This Act authorized the President to provide for the deferment from training and service certain categories of individuals in many different fields as found to be necessary to the maintenance of the national health, safety, or interest.

Work stoppages are the nemesis of any defense production program. The wartime efforts to prevent or speedily terminate such stoppages are reported in the next section, on the theory that they were primarily coercive in nature. The Defense Production Act of 1950, however, clearly reflects the statutory trend in the United States against the outlawing of strikes in time of emergency. Section 502 of the Act emphasizes that national policy is to place primary reliance upon the parties to any labor dispute to settle their differences through negotiation and collective bargaining, making full use of available mediation and conciliation facilities. All settlements should be made in the national interest. The President is to initiate strike settlement conferences, with representatives of the public present, but no action inconsistent with the Labor-Management Relations Act of 1947 may be taken.

Current information on the availability of essential skills must be maintained. The National Science Foundation Act of 1950 included among the functions of the agency that of maintaining a register of scientific and technical personnel and providing a central clearinghouse for information covering all scientific and technical personnel in the United States.

The Military Services: Maintenance on active duty or in reserve status of armed forces components adequate to the defense of the United States is of continuing concern to the government. It is not alone in time of war that attention is given to the adequacy of the military services. Thus the 1930’s witnessed a series of amendments to the 1916 National Defense Act designed to improve the status of the reserve components of the Army. In June 1933, during the famous first hundred days of the Roosevelt administration, it was not too preoccupied with depression legislation to secure legislation introducing changes into procedures for establishing National Guard policy. All policies and regulations affecting the organization, training and distribution of the National Guard were to be prepared by committees of appropriate branches or divisions of the War Department General Staff.

The Guard would be entitled to equal representation with the Regular Army in formulating Guard policies, but the paramount fact was that of federal supervision and integration of the National Guard. Further, the President was empowered to determine the number of reserve officers in the various grades to be appointed to the Officers’ Reserve Corps, and to make such appointments, subject to Senatorial approval for ranks above Colonel. This is a characteristic extension of the president’s power as Commander-in-Chief.

Two years later, in June 1935, a further amendment to the 1916 statute gave the President authority in an emergency at any time to order officers of the National Guard to active duty for the duration of the emergency, with the proviso, however, that no officer could be employed on active duty for more than fifteen days in any calendar year without his own consent. Later that year the President was authorized to call annually one thousand Reserve Officers (mostly R.O.T.C. graduates) for a year’s active duty with the Regular Army in the grade of second lieutenant. Only those who applied and who had been screened by the War Department were eligible.

Continuing to elaborate amendments to the National Defense Act, Congress, in April 1938, established the requirement that line officers should not be detailed to or remain as members of the General Staff Corps unless two of their immediately preceding six years had been served in actual command of or on duty other than General Staff duty, with troops of one or more of the combatant arms or as instructor with the National Guard, Organized Reserves, or Reserve Officers’ Training Corps. Two days later in another amendment to the basic act, Congress provided for establishment of a Regular Army Reserve, membership in which was restricted to persons under 36 years of age who had served in the Regular Army and from which an honorable discharge had been received. The Regular Army Reserve was subject to call to active duty by the President in case of emergency declared by him. Within six months after the termination of an emergency declared by the President, the Reserve forces were to be placed in an inactive status or discharged, whichever was the more appropriate.

In June 1938 the 1916 statute was amended to increase the allowed strength of enlisted men in the Army Air Corps from 16,000 to 21,500. That same month an earlier Naval Reserve statute (Act of February 28, 1925) was superseded and a Naval Reserve to consist of the Fleet Reserve, the Organized Reserve, the Merchant Marine Reserve, and the Volunteer Reserve was created. All were to constitute a component part of the Navy. The same Act also provided for a Marine Corps Reserve. The reserve units were to be composed of persons transferred, enlisted, or appointed to them.

But it is in 1940 that the statute books commence to reflect administration and congressional anticipation of American participation in the War and the attendant necessity to compel individuals to give military service. On May 14, 1940 provision was made for the extension of all enlistments in the active military service for the duration, plus six months in the event of war or other emergency declared by Congress. The Secretary of the Navy was given power, six days following Pearl Harbor, to extend for the duration of the war plus six months all enlistments in the Navy, Marine Corps, and Coast Guard. Another enactment of that date permitted the similar extension of Army service. This Act also eliminated all territorial restrictions on the use of units and members of the Army.

Congress, having made provision for the extension of regular service enlistments for the duration in the event of emergency, then granted the President authority to call the reserve to active duty. This was accomplished in August 1940 when Congress delegated to the President power until June 30, 1942 to order into the active military service for a twelve month period any or all members and units of any or all reserve components of the Army of the United States, and retired personnel of the Regular Army, with or without their consent, in any manner the President deemed necessary for the strengthening of the national defense. The August statute having empowered the President to order the National Guard, as well as other reserve units, into active duty, it seemed desirable to equip the States with authority to set up military units for home duty in the absence of the Guard.

An October 1940 statute accomplished this purpose by authorizing the states, while any part of the National Guard of the state concerned was in active federal service, to organize and maintain whatever military forces other than National Guard were believed necessary by the state. These forces were subject to the Secretary of War’s regulation on matters of discipline and training. They were not subject to federal call, but neither were individual members exempt by reason of service in such units from military service under any federal law. In September 1950, three months after outbreak of the Korean War, Congress authorized the President to call up reserve forces and retired personnel from all military branches, with or without the consent of those called. And, as in the Second World War, state authorities were again empowered to set up military units to substitute for the National Guard as long as any part of the National Guard was in active federal service.

Meanwhile the gradual inclusion of compulsory service provisions in statutes was carried to its ultimate conclusion in the Selective Training and Service Act of 1940. The Act required the registration of all male citizens of the United States and male alien residents between the ages of 21 and 36. The President was authorized from time to time, whether or not a state of war existed, to select and induct into the land and naval forces of the United States for training and service whatever number of men in his judgment might be required for such forces in the national interest. A peacetime ceiling of 900,000 inductees was established, and provision made for a twelve months’ maximum training period subject to extension whenever the Congress declared that the national interest was imperiled. The remaining powers granted to the President in the Act, and the limitations which circumscribed his exercise of them, will be discussed in other contexts.

By proclamation that day, and on October 1, 8, and November 12, the President established registration days in the United States proper, Hawaii, Puerto Rico, and Alaska. A second registration day was proclaimed in May 1941, and a third on January 5, 1942. The Conscription Act was continued in effect for the duration of the war. A post-war, or “cold war”, conscription program was set up in June 1948. The new statute provided for the registration of male citizens and alien residents between the ages of 18 and 26, and made those between 19 and 26 subject to induction into the armed forces at the discretion of the President. He was empowered to induct a sufficient number of persons to maintain the personnel strengths of the armed forces at three million men. The maximum term of service was two years, and the Act’s duration was set at two years. A September 1950 amendment to the Act allowed the President to require special registration of medical, dental, and allied specialties, drafting persons below the age of 50 from the lists to fill requisitions submitted by the Department of Defense and approved by the President. An eleventh hour enactment of June 23, 1950 deferred expiration of the Selective Service Act for fifteen days, and seven days later July 9, 1951 was substituted for the July 9, 1950 expiration date.

The next year saw systematic amendment of the 1948 statute, including a change of title to the Universal Military Training and Service Act. The maximum of two years’ service was continued, and the minimum age for both registration and induction set at 18-1/2 years. A 1953 amendment to the Act provided for the special registration, classification, and induction of medical, dental, and allied specialist personnel. A method for gaining release from military service, anachronistic in the age of universal military service and the citizen army, was removed when in July 1953 Congress repealed provisions of 1890 and 1893 statutes which permitted enlisted men to purchase discharge from the armed services.

A series of non-coercive statutes from 1939 on were designed to augment the armed services. In June 1939 Congress established a Coast Guard Reserve, composed of owners of motorboats and yachts. In March 1941 the President was empowered to appoint within the Navy 100 acting assistant surgeons above previous quotas, and the Secretary of the Navy given power in time of war or national emergency declared by the President to appoint for temporary service, such acting assistant surgeons as the exigencies of the service required.

A June 1942 statute suspended all limitations on personnel strength in the military services. Upon emergence of the “Cold War” Congress again authorized increases in military strength. In April 1946 the Navy and Marine Corps were permitted to increase the number of commissioned officers on the active list, and to maintain enlisted strength at 500,000 for the Regular Navy, and at 200,000 for the Marine Corps. A Civil Air Patrol, to serve as a volunteer civilian auxiliary to the Air Force, was established in May 1948. The Air Force was to establish, maintain, supply, and equip liaison offices with the CAP, and to detail Air Force military and civilian personnel to assist in training CAP members. Not dissimilar to the provision establishing the CAP as a civilian adjunct to the Air Force was a 1953 statute authorizing the President to employ the American National Red Cross under the Armed Forces whenever the President found it necessary to order such employment.

The Women’s Armed Services Integration Act of June 1948 integrated the women’s services as Regular units within the Army, Navy, Marine Corps, and Air Force. Four years later Congress authorized the appointment of qualified women as physicians and specialists in the medical services of the Army, Navy, and Air Force. In 1950 provision was made for the five year enlistment in the Regular Army of 2,500 qualified unmarried male aliens. Alien enlistees were integrated into established units with citizen soldiers and not segregated into separate organizations for aliens.

NEGATIVE INTEGRATION

It has become an axiom of democratic government that in time of emergency threatening the health or safety of the community or the territorial integrity of the nation, the objective of communal survival takes precedence over the desires and conveniences of the individual. The energies, wealth, talents of individuals may be conscripted in the national interest. Democratic governments also have asserted the right to constrict the range of permissible activities of individuals whose freedom, if unlimited, is calculated to exacerbate the emergency. Such limitations may apply to the population generally or to defined segments of it. The intensity of such limitations may be measured on a continuum ranging from precautionary detention to the relatively mild requirement that persons in defined categories register with the government.

Preventive Detention: At an early date Congress, with judicial approval, exercised the power to apprehend and detain all enemy aliens. On December 7, 1941, President Roosevelt issued the first of ten wartime proclamations founded upon Congressional enactments of 1798 and 1918, imposing limitations upon the activities of enemy aliens, and specifically announcing that “All aliens shall be liable to restraint, or to give security,” and that dangerous aliens might be subjected to arrest and confinement. In two statutes enacted in 1952, Congress reiterated its desire that illegal entrants be apprehended and detained pending deportation. These statutes provided for the search of vessels and arrest of persons seeking to enter the United States illegally, and authorized the establishment of necessary detention facilities to hold those arrested.

It is well known that in World War II persons of Japanese ancestry, including even those possessed of American citizenship, were subjected to preventive detention. Presidential exercise of this form of restraint is now sanctioned on a standby basis. Title II of the Internal Security Act of 1950 empowers the President in time of “Internal Security Emergency” to order the apprehension and detention of persons “as to whom there is reasonable ground to believe that,” if free, they “will engage in, or probably will conspire with others to engage in, acts of espionage or of sabotage.” The President may declare a state of internal security emergency upon the invasion of the United States or any of its territories or possessions, the declaration of war by Congress, or insurrection within the United States in aid of a foreign enemy.

Access to the U.S. and U.S. Citizenship: Closely related to the detention of enemy aliens or others whose liberty is perceived to endanger the security of the state is the control of access to the United States and the acquisition of United States citizenship. By Act of June 20, 1941 Congress instructed American diplomatic and consular officers to refuse visas or entry permits to aliens believed seeking entry into the United States for the purpose of engaging in activities which would endanger the public safety. The following day Congress granted the President power during the existing national emergency to place restrictions and prohibitions in addition to those already provided by law upon the departure of persons from and their entry into the United States. In proclamations of July and September 1945 and April 1946, President Truman ordered the deportation of enemy aliens resident in the United States without admission under the immigration laws, or enemy aliens deemed dangerous to the public peace and safety of the United States.

In an earlier statute Congress excluded from admission to the United States persons who have departed from the jurisdiction of the United States for the purpose of evading or avoiding training or service in the armed forces of the United States during time of war or during a period declared by the President to be a period of national emergency. Among the myriad restrictions of the Internal Security Act of 1950 are to be found additional categories of aliens ineligible for entry into the United States, principally aliens who at any time have been members of the Communist or other totalitarian party of any state of the United States, of any foreign state, or of any political or geographical subdivision of any foreign state, and aliens who advocate the economic, international, and governmental doctrines of world communism or of any form of totalitarianism.

Naturalization is refused or citizenship withdrawn from persons falling into classifications created by a security-conscious Congress. The Nationality Act of 1940 restricted the eligibility of alien enemies for nationalization to those whose declaration of intention was made not less than two years prior to the beginning of the state of war and specified that enemy aliens were eligible for apprehension and removal at any time previous to actual naturalization. Section 25 of the Internal Security Act amends the Nationality Act of 1940 to make ineligible for naturalization persons subscribing to or giving evidence of subscribing to anarchist, communist, or any totalitarian movement or body of sentiment. Those who within the ten years next preceding the filing of naturalization petitions, or in the period between such filing and the time of taking the final oath of citizenship, have been members of, or affiliated with, communist-front organizations registered under the Subversive Activities Control Act of 1950, must rebut a presumption that they are persons not attached to the principles of the Constitution and thus ineligible for citizenship.

Congress has devised appropriate means for handling the cases of persons seeking to renounce American citizenship. To facilitate the surrender of United States citizenship by persons of Japanese ancestry, Congress in July, 1944, specified that with the permission of the Attorney General, and when the United States is at war, citizens may accomplish expatriation by the simple act of making in the United States a formal written renunciation of nationality in such form as may be prescribed by, and before an officer designated by the Attorney General. The assumption that persons departing from or remaining outside of the jurisdiction of the United States in time of war for the purpose of evading or avoiding military service renounce their American citizenship was created by an Act of Congress in September, 1944.

President Roosevelt by proclamation of July 1941 provided for establishment of “The Proclaimed List of Certain Blocked Nationals” to be published in the Federal Register. The list was to contain the names of those persons deemed to be, or to have been, acting on behalf of the interests of Germany and Italy. Any material or article exported from the United States through the efforts of German and Italian “blocked nationals” was declared to be detrimental to the interest of national defense in the United States. The Secretary of State, acting in conjunction with the Secretary of the Treasury, the Attorney General, the Secretary of Commerce, the Administrator of Export Control, and the Coordinator of Commercial and Cultural Relations between the American Republics was required to prepare the list.

Persons naturalized after January 1, 1951 created a prima facie case that they were not attached to the principles of the Constitution of the United States at the time of naturalization, if within five years after naturalization they joined as a member or affiliated with any organization, attachment to which would have precluded or hindered naturalization in the first place. The unwary risked cancellation of his citizenship for fraud if found to be connected with an organization whose goals and objectives were directed against the United States. This is one of the Internal Security Act provisions designed to exclude communists from naturalization. The Expatriation Act of 1954 provides for the loss of nationality of persons (whether natural born or naturalized citizens) convicted by a court or court martial of committing treason against the United States, or engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them.

Circumscribing Movement of Persons: The area of permissible mobility is narrowed for all persons in time of war or emergency. The population generally is excluded from specified security areas. By Act of January, 1938, Congress authorized the President to define certain vital military and naval installations or equipment and made it unlawful to photograph or sketch such installations without proper authority. This obviously limits access to and activity in areas adjacent to such equipment. A 1950 amendment to the Civil Aeronautics Act, for example, empowered the Secretary of Commerce, after consultation with the Department of Defense and the Civil Aeronautics Board, to define zones or areas in the airspace above the United States, its Territories, and possessions as he may find necessary in the interests of national security. The Secretary is also given authority to prohibit or restrict flights of aircraft which he cannot effectively identify, locate, and control in those areas. Selected groups of persons, generally enemy aliens, may be prohibited from entering or remaining in certain areas of the country. Proclamation No. 2525, December 7, 1941, forbade the presence of alien Japanese in the Canal Zone, and restricted their entry into, or departure from, Hawaii, the Philippine Islands, and the United States, and provided for their exclusion from designated areas. Of maximum severity were limitations on mobility beyond the limits of a community, or confinement in a camp or cell. The movement to restrict travel by Americans dates from the 1935 endeavor of the American Congress to avoid American involvement in any future conflict. Section 6 of the Neutrality Act of 1935 empowered the President to prohibit or regulate travel by American citizens as passengers on the vessels of any belligerents in a war in which the United States was a neutral. Individuals travelling in violation of orders did so at their own risk.

Two months after passage of the Neutrality Act, in October 1935, President Roosevelt issued Proclamation No. 2142, applying Section 6 to the Ethiopian conflict, and ordering American citizens to refrain from traveling as passengers on vessels of either belligerent. The May 1937 amendments to the Neutrality Act strengthened this provision by making it unlawful for any United States citizen to travel on belligerent vessels in contravention of the President’s prohibition or regulation of such travel. In 1939 these provisions were broadened to include any American travelling on such a vessel as a member of its crew, and to prohibit American ships from carrying goods or passengers to belligerent ports or combat areas.

President Roosevelt’s Neutrality Proclamation of September 5, 1939, among other things, prohibited Americans from accepting commissions with belligerents, or enlisting in the service of a belligerent. Hiring persons to enlist, or going beyond the jurisdiction of the United States with the intent to join belligerent forces, were also prohibited.

By Act of March 28, 1940, Congress extended application of an earlier prohibition on unauthorized entry on military reservations to the outlying possessions of the United States. A year later it granted the Secretaries of War and Navy, jointly or singly, power to define areas within such reasonable distance of any military or naval camp or station in which prostitution would be prohibited by federal law.

By Proclamation of December 27, 1941 President Roosevelt established the Hawaiian Maritime Control Area, and regulated entry, radio calls, visual communications, and traffic in that area. Naval authorities were granted power to establish supplementary regulation. Subsequently, the President established Maritime Control Areas for Cristobal and the Gulf of Panama, Boston, San Francisco, Columbia River, Puget Sound, Southeastern Alaska, and other areas. On May 20, 1942, invoking his powers as Commander-in-Chief, the President established the Padre Island Sea Range Area, and imposed regulations controlling entry to an activity in that area. The next day he signed into law an enactment providing a maximum penalty of $5,000 fine and one year imprisonment for knowingly violating restrictions established by the President, the Secretary of War, or military commanders designated by him, on entering, remaining in, leaving, or committing proscribed acts in military areas or zones.

The areas thus far described were defined principally for exclusionary purposes. It is not unusual to define areas with a view to confining therein specific persons or categories of persons. Invoking a 1909 statute, the President on September 5, 1939 made it illegal for interned members of the armed forces of belligerent nations to leave the jurisdiction of the United States, or the limits of their internment, without permission. In a later proclamation the President stipulated that no alien would be permitted to depart from the United States if the Secretary of State were satisfied that the alien’s departure would be prejudicial to the interests of the United States.