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authorization[1] and, thus, was "supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it."[2] However, the Court could not find that either IEEPA or the Hostage Act[3] authorized the President to suspend claims. The Court, therefore, looked at the legislative intent of these statutes in order to determine whether the President acted alone or with the acquiescence of Congress.[4] In finding that Congress had acquiesced in the President's actions, the Court stated:
Congress cannot anticipate and legislate with regard in every possible action the President may find it necessary to take or every possible situation in which he might act. Such failure of Congress specifically to delegate authority does not, "especially . . . in the areas of foreign policy and national security," imply "congressional disapproval" of action taken by the Executive. Haig v. Agee, 453 U.S. 280, 291. On the contrary, the enactment of legislation closely related to the question of the President's authority in a particular case which evinces legislative intent to accord the President broad discretion may be considered to "invite measures on independent presidential responsibility." Youngstown 343 U.S. at 637 (Jackson, J., concurring). At least this is so where there is no contrary indication of legislative intent and when as here, there is a history of congressional acquiescence in conduct of the sort engaged in by the President.[5]
It would also appear highly significant that the executive order issued in Dames & Moore involved issues of foreign policy and national security. Traditionally, executive orders and proclamations that involve these two areas have been given great leeway by the courts. One example of a controversial executive order, involving national security during WWII, which was upheld, was Executive Order 9066 which authorized the dislocation of Americans of Japanese ancestry from the West Coast and their confinement in camps in the southwestern desert for the duration of the war. In Korematsu v. U.S., the Supreme Court speaks at length about the facts of the case and the national emergency which we faced.[6] The following statement sums up the Court's reasoning behind sanctioning Executive Order 9066:
Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our
- ↑ See § 203 of the IEEPA, 91 Stat. 1626, 50 U.S.C. § 1702(a)(1) and § 5(b) of the Trading With the Enemy Act, 40 Stat. 411, as amended, 50 U.S.C. App. § 5(b).
- ↑ Dames & Moore, 453 U.S. at 674, quoting, Youngstown, 343 U.S. at 637 (Jackson, J., concurring)
- ↑ Rev. Stat. § 2001, 22 U.S.C. § 1732.
- ↑ See also Haig v. Agee, 453 U.S. 280 (1981); AFL-CIO v. Kahn, 618 F.2d 784 (1979).
- ↑ Dames & Moore, 453 U.S. at 678. See also U.S. v. Midwest Oil Company, 236 U.S. 459 (1915) (Long congressional silence with respect to unauthorized executive order construed as consent).
- ↑ 323 U.S. 214 (1944). See also Hirabayashi v. U.S., 320 U.S. 81 (1942) (a conviction for violation of a curfew order, based upon Executive Order 9066, was sustained by the Court).
