Page:Harvard Law Review Volume 32.djvu/834

798 HARVARD LAW REVIEW tive to place a compulsory order was sufficient to justify the de- fendant's action. The language on this point is as follows: "Nor do I accept the argument that since defendant was presumed to know that the government could commandeer its plant, the various requests for precedence, envisaged with the power to compel acquies- cence, showed what would be attained by exercise of the power if denied or obstructed and so were a form of order. Some of the vigor of this argument seems to depart when it is seen how equally available it would be to a party, willing to exploit its possibilities of war profits with intended evasion or downright violation of his civilian contracts." ^* It is possible to distinguish this case from the Hulton case since it is clear that in the Hulton case the government did not desire to cut off imports entirely but only to a limited extent. Appar- ently the only means of doing this was to enforce compliance with a nonmandatory regulation through an implied threat of complete prohibition, and hence the failure of the government actually to exercise its legal powers was no indication that the threat was not a genuine one. In the Mawhinney case on the other hand it might be argued that if the government had really needed priority it would have issued a statutory compulsory order. A very slight acquaintance with the actual practice of the government during the war is, however, sufficient to demonstrate that this latter sug- gestion is not in accord with the practical situation. For reasons which concern the administrator rather than the lawyer, the ad- ministration early adopted and rigidly adhered during the war to a policy of obtaining the priority urgently needed for governmental and other essential orders in the large majority of cases by non- mandatory directions based ultimately on the powers of compul- sion rather than by the actual exercise of the statutory compulsive powers. 1* The court also rejected the argument that what was done was valid as an exercise of the war power of the President. This power is vested in him as commander in chief, and, according to the Civil War cases, relates to the conduct of campaigns and the administration of martial law at the seat of war, rather than to the taking of measures not sanctioned by act of Congress for the procvurement of military supplies. Cf., Ex parte MiUigan, 4 Wall. (U. S.) 2 (1866); MitcheU v. Harmony, 13 How. (U. S.) 115 (1851). The changed character of modern war may have altered the situation somewhat, but it would still appear to be true that, the power to raise and support armies being vested in Congress by the Constitution it is the function of Congress rather than of the President to provide for the issuing of orders to members of the civilian population to produce war materials, and that presidential orders of this sort must have some statutory basis, direct or indirect, to have any validity.