rcise 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]

The Mergence of Legislative and Executive in Wartime

Both theories receive countenance in different passages in the opinion
of Chief Justice Stone in Hirabayashi _v._ United States.[1274] In
disposing of the contention that the curfew imposed upon a citizen of
Japanese descent involved an invalid delegation of legislative power,
the Chief Justice said: "The question then is not one of Congressional
power to delegate to the President the promulgation of the Executive
Order, but whether, acting in cooperation, Congress and the Executive
have constitutional authority to impose the curfew restriction here
complained of. * * *, we conclude that it was within the constitutional
power of Congress and the executive arm of the Government to prescribe
this curfew order for the period under consideration and that its
promulgation by the military commander involved no unlawful delegation
of legislative power