DELEGATION OF LEGISLATIVE POWER IN WARTIME
While insisting that, "in peace or in war it is essential that the Constitution be scrupulously obeyed, and particularly that the respective branches of the Government keep within the powers assigned to each,"[1269] the Supreme Court has recognized that in the conduct of a war delegations of power may be valid which would not be admissible in other circumstances. The cases in which this issue has been raised have been few in number. In one, the Selective Draft Law cases,[1270] the objection was dismissed without discussion. In a second, the price-fixing authority exercised by the Office of Price Administration during the second world war, was, on the issue of delegation of power, sustained by reference to peace time precedents.[1271] Where the war power has been the basis of decision, two different theories concerning its significance can be recognized. The first is that since the war power is an inherent power shared by the legislative and executive departments rather than an enumerated power granted to the former, Congress does not delegate _legislative_ power when it authorizes the President to exercise the war power in a prescribed manner. Opposed to this is the view that the right of Congress to delegate power to the President is limited in this as in other cases but that where the validity of the delegation depends upon whether or not too great a latitude of discretion has been conferred upon the Executive, the existence of a state of war is a factor to be considered in determining whether the delegation in the particular case is necessary and hence permissible.
The idea that a delegation of discretion in the exercise of the war power stands on a different footing than delegation of authority to levy a tax is implicit in Justice Bradley's opinion in Hamilton _v._ Dillin.[1272] The plaintiffs in that case contended that the sum they were required to pay for the privileges of buying cotton in the South was a tax, which, since it was imposed by the Secretary of the Treasury, was invalid because the taxing power was not susceptible of delegation to the Executive Department. To this argument the Court replied: "It is hardly necessary, under the view we have taken of the character of the regulations in question, * * *, to discuss the question of the constitutionality of the act of July 13th, 1861, regarded as authorizing such regulations. * * *, the power of the Government to impose such conditions upon commercial intercourse with an enemy in time of war * * * does not belong to the same category as the power to levy and collect taxes, duties, and excises. It belongs to the war powers of the Government * * *."[1273]