76 these prerogatives to be sure were taken when

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76 These prerogatives, to be sure, were taken when Congress was not in session and, where appropriate, Lincoln sought retroactive congressional approval. But the net effect of Lincoln’s initiatives was to make clear that by combining the constitutional injunction to faithfully execute the laws with the “commander-in-chief” authority during war and emergencies, presidents could exercise extremely broad powers that embraced ends and functions normally regarded as within the legislative ambit. The lessons of the Civil War were not lost on Congress. In World War I, it delegated enormous powers to the president dealing with virtually every major sector of the economy connected with the war effort – industry, agriculture, communications, transportation, mining, food and fuel procurement and storage – by way of anticipating his needs and preempting the use of prerogative powers. The same path was followed in World II. In both instances, most of the powers delegated to the president were then further delegated by the president to boards and commissions, a number of which, while vested with rule making powers that carried the sanctions of law, were creatures of the executive, not Congress. This process has raised constitutional challenges involving delegation and due process, which the Supreme Court, true to its normal state of suspended animation during war time, has rejected. 77 While the Supreme Court has answered important questions related to presidential powers during times of war, there still remain concerns in the realm of constitutional theory that bear directly on the separation of powers doctrine. The first is, what if the president, during an emergency or war, exercises a power that Rumsfeld, Secretary of Defense before the House Armed Services Committee, 18 September 2002, at < ;. Rumsfeld suggests the congressional power is, in effect, obsolete. 75. See The Federalist , 69/357-58; 74/384-85. 76. Corwin, The President: Office and Powers , 231. Here Corwin classifies the types of action taken by Lincoln that did or did not lead to increased presidential powers. 77. Yakus v. United States , 321 U.S.414 (1944). 285
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Congress has expressly or even inferentially denied the president? The Supreme Court has had occasion to rule on this question, but the Court was divided (6-3) and seven justices wrote separate opinions, thereby leaving room for speculation and conjecture concerning the limits of presidential powers. The Court’s decision arose from President Truman’s seizure of the steel mills during the Korean War. 78 Obviously, in justifying the seizure, stress was placed on the grave results that might result for American armed force in Korea if steel production were curtailed for any length of time. On the basis of their opinions, it appears that a majority of the justices subscribed to some notion of extra-constitutional presidential powers, most certainly the traditional prerogative power; that is, more exactly, their opinions
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  • Fall '16
  • carol
  • Separation of Powers

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