[Deschler's Precedents, Volume 3, Chapters 10 - 14]
[Chapter 13. Powers and Prerogatives of the House]
[B. War Powers]
[Â§ 9. Pre-World War II Legislative Restrictions on Military Activity]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1816-1823]
 
                               CHAPTER 13
 
                  Powers and Prerogatives of the House
 
                             B. WAR POWERS
 
Sec. 9. Pre-World War II Legislative Restrictions on Military Activity

    The German invasion of Poland in September of 1939 and the 
subsequent declarations of war on Germany by Britain and France 
intensified the public debate over United States involvement or support 
for its traditional allies in the conflict.
    Shortly after the German invasion, the President by proclamation 
convened an extraordinary session of Congress to act on neutrality 
legislation.(2) Accepting the President's 
request,(3) Congress repealed provisions of the Neutrality 
Acts of 1935 and 1937 which prohibited shipments of arms and ammunition 
to belligerent nations.(4)
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 2. See Sec. 12.3, infra, for this proclamation.
 3.  See Sec. 11.6, infra, for a discussion of the President's address 
        to a joint session.
 4. Sec Sec. 9.1, infra, for the discussion of the Neutrality Act of 
        1939.
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    Congress later authorized the President to provide military 
supplies to American republics.(5) The concept of providing 
assistance to other nations which originated in the joint resolution 
making military assistance available to American republics was extended 
beyond the Western Hemisphere. The Lend-Lease Act authorized the 
President to direct the manufacture, lease, or loan of military and 
naval supplies to ``the government of any country whose defense the 
President deems vital to the defense of the United States.'' 
(6~) This act permitted the United States to supply Britain 
and other nations in their struggle against Germany.
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 5. See Sec. 9.2, infra, for a discussion of this measure. The 
        Neutrality Act of 1939 did not apply to American republics.
 6. See Sec. 9.3, infra, for a discussion of the Lend-Lease Act.
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    At the request of the President, Congress approved the first 
peacetime draft in the nation's history, the Selective Service Act of 
1940, but prohibited the employment of inducted land forces outside the 
Western Hemisphere.~(7~) An identical restriction had been 
imposed a month earlier in a joint resolution authorizing the President 
to activate reserve and retired military personnel.(8) 
Protecting the Western Hemisphere became sig

[[Page 1817]]

nificant in actions preceding American involvement in World War II. The 
President justified his actions as in the interest of Western 
Hemisphere defense when he acted to acquire British territory in 
Newfoundland, Bermuda, and certain Caribbean islands for bases in 
exchange for out-of-date American destroyers,(9) and sent 
American troops to replace British forces in Iceland.(10)
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 7. See Sec. 9.5, infra, for this restriction.
 8. See Sec. 9.4, infra, for this resolution.
 9. See Sec. 11.7, infra. See also Sec. 3.2, supra, for an opinion of 
        the Attorney General as to the constitutionality of this action 
        taken without consulting Congress.
10. See Sec. 11.8, infra, for an announcement of this action.
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    Legislation regulating thc economy was enacted prior to and during 
World War II. The Priorities Act of May 31, 1941,(11) 
empowered the President to allocate any material where necessary to 
facilitate the defense effort. The Second War Powers Act 
(12) extended this authority. These two acts furnished the 
statutory foundation for the extensive system of consumer rationing 
administered by the Office of Price Administration, as well as for the 
comprehensive control of industrial materials and output which was 
exercised by the War Production Board.(13) Under the 
Emergency Price Control Act,(14) the Office of Price 
Administration regulated the price of almost all commodities, as well 
as the rentals for housing accommodations in scores of defense rental 
areas. The War Labor Disputes Act (15) permitted the 
President to commandeer plants which were closed by strikes. The 
Renegotiation Act,(1~6) which the Su

[[Page 1818]]

preme Court found to be a proper exercise of the war powers by 
Congress,(17) authorized the government to recover excessive 
profits realized on war contracts.
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11. 55 Stat. 236, 77th Cong. 1st Sess. (Pub. L. No. 77-92).
12. 56 Stat. 176, 77th Cong. 2d Sess. (Pub. L. No. 77-507).
13. Constitution of the United States of America: Analysis and 
        Interpretation, S. Doc. No. 92-82, 92d Cong. 2d Sess. 337 
        (1973).
14. 56 Stat. 23, 77th Cong. 2d Sess. (Pub. L. No. 77-421).
15. 57 Stat. 163, 78th Cong. 1st Sess. (Pub. L. No. 78-89).
16. The Supreme Court in Lichter v United States, 334 U.S. 742, 745 
        (1948) stated that the term ``the Renegotiation Act'' included 
        56 Stat. 226, 77th Cong. 2d Sess. (Pub. L. No. 77-528), the 
        Sixth Supplemental National Defense Appropriation Act, 
        sometimes called the First Renegotiation Act; 56 Stat. 798, 
        801, 77th Cong. 2d Sess. (Pub. L. No. 77-753), the Revenue Act 
        of 1942, Title VIII, Renegotiation of War Contracts; 57 Stat. 
        347, 78th Cong. 1st Sess. (Pub. L. No. 78-108), Military 
        Appropriations Act of 1944; 57 Stat. 564, 78th Cong. 1st Sess. 
        (Pub. L. No. 78-149), an act to prevent payment of excessive 
        fees or compensation in connection with the negotiation of war 
        contracts; 58 Stat. 21, 78-93, 78th Cong. 2d Sess. (Pub. L. No. 
        78-235), Revenue Act of 1943, Title VII, Renegotiation of War 
        Contracts, and Title VIII, Repricing of War Contracts.
17. Lichter v United States, 334 U.S. 742 
        (1948).                          -------------------
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Neutrality Act

Sec. 9.1 The House and Senate agreed to the conference report on the 
    Neutrality Act of 1939.

    On Nov. 3, 1939, the House by a vote of yeas 243, nays 172, not 
voting 14,(18) and the Senate by a vote of yeas 55, nays 
24,(19) agreed to the conference report (H. Rept. No. 1475) 
on House Joint Resolution 306, the Neutrality Act of 1939, to preserve 
the neutrality and peace of the United States and secure the safety of 
its citizens and their interests.(20)
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18. 85 Cong. Rec. 1389, 76th Cong. 2d Sess. See also pp. 1381-86, for 
        the conference report and statement of the conferees.
19. Id. at p. 1356.
20. 22 USC Sec. Sec. 441, 444, 445, 447-451, 453-457; Pub. Res. No. 54, 
        54 Stat. 4, Ch. 2, H.J. Res. 306, 76th Cong. 2d Sess., approved 
        Nov. 4, 1939. Neutrality legislation had been approved on Aug. 
        31, 1935 (Pub. Res. No. 67, 49 Stat. 1081, S.J. Res. 173, 74th 
        Cong. 1st Sess.), and amended on May 1, 1937 (Pub. Res. No. 27, 
        50 Stat. 121, S.J. Res. 251, 75th Cong. 1st Sess.).
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    The act, which did not apply to any American republic engaged in 
war against a non-American state or states, authorized the President to 
issue a proclamation naming foreign states as belligerents whenever he 
or the Congress by concurrent resolution found that a state of war 
existed between foreign states.(1) He was also authorized to 
require a bond from the owner or person in command of any domestic or 
foreign vessel which he had reason to believe was about to carry out of 
a port or from the jurisdiction of the United States, fuel, men, arms, 
ammunition, implements of war, supplies, dispatches, or information to 
any warship, tender, or supply ship of a belligerent state; and to 
promulgate rules and regulations.(2)
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 1. See Sec. 12.4, infra, for an example of this kind of proclamation.
 2. This provision effectuated a request of the President to repeal 
        embargo provisions of earlier Neutrality Acts. See Sec. 11.6, 
        infra, for a discussion of the President's message requesting 
        the Neutrality Act of 1939.
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    It was further provided that where states and areas are named as 
being at war in a Presidential proclamation issued pursuant to

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authority granted in the act, no American vessels may lawfully carry 
passengers or articles to such states.(3~) Similarly, the 
terms of the act provided that no American citizen or vessel may 
lawfully proceed into an area designated by the President as a combat 
zone.~(4~) Moreover, no American citizen may lawfully travel 
on any vessel of any such state and no American merchant vessel engaged 
in commerce with any foreign state may lawfully be armed.(5) 
And no person in the United States may lawfully engage in certain 
financial transactions with any government or any political subdivision 
of such states or person acting for or on behalf of such 
governments.(6)
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 3. This provision, Sec. 2 of the Neutrality Act of 1939, was repealed 
        by 55 Stat. 764, Ch. 473 Sec. 1, 77th Cong. 1st Sess. (Pub. L. 
        No. 77-294), approved on Nov. 17, 1941.
 4. This provision, Sec. 3 of the Neutrality Act of 1939, was repealed 
        by 55 Stat. 764, Ch. 473 Sec. 1, 77th Cong. 1st Sess. (Pub. L. 
        No. 77-294), approved on Nov. 17, 1941.
 5. This provision, Sec. 6 of the Neutrality Act of 1939, was repealed 
        by 55 Stat. 764, Ch. 473 Sec. 2, 77th Cong. 1st Sess. (Pub. L. 
        No. 77-294), approved Nov. 17, 1941.
 6. This provision, Sec. 7 of the Neutrality Act of 1939, was amended 
        to be inoperative when the United States engages in war. 56 
        Stat. 95, Ch. 104, 77th Cong. 2d Sess. (Pub. L. No. 77-459), 
        approved on Feb. 21, 1942.
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    The act also provided that no person within the United States may 
solicit or receive any contribution for or on behalf of a government, 
agency, or instrumentality of such states. Whenever the President 
places special restrictions on the use of ports and territorial waters 
of the United States, submarines and armed merchant vessels of a 
foreign state may not enter or depart from those ports or territorial 
waters.(7)
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 7. See Sec. 12.5, infra, for such restrictions.
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    The act also established the National Munitions Control 
Board.(8)
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 8. This provision, Sec. 12 of the Neutrality Act of 1939, was repealed 
        by 68 Stat. 861, Ch. 937, title V Sec. 542(a) (12), 83d Cong. 
        2d Sess. (Pub. L. No. 83-665, H.R. 9678), approved on Aug. 26, 
        1954.
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Military Assistance to American Republics

Sec. 9.2 The Senate and House agreed to a joint resolution authorizing 
    the Secretaries of War and of the Navy to assist the governments of 
    American republics to increase their military and naval 
    establishments.

    On May 28, 1940, the Senate amended and passed,(9) and 
on

[[Page 1820]]

June 5, 1940, the House agreed to Senate amendments and 
passed,(10) House Joint Resolution 367, authorizing the 
President in his discretion to direct the Secretary of War to 
manufacture or otherwise procure coast-defense and antiaircraft 
materiel, including ammunition therefor, and to direct the Secretary of 
the Navy to construct vessels of war on behalf of any American 
republic.(11)
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 9. 86 Cong. Rec. 6977, 76th Cong. 3d Sess.
10. Id. at p. 7616. See 85 Cong. Rec. 9861, 76th Cong. 1st Sess., July 
        24, 1939, for initial House approval of this joint resolution.
11. Pub. Res. No. 83, 54 Stat. 396 (June 15, 1940).
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Lend-Lease Act

Sec. 9.3 The Senate and House agreed to a bill further to promote the 
    defense of the United States, known as the Lend-Lease Act, which 
    authorized the President to direct manufacture, lease, and loan of 
    war supplies to foreign governments.

    On Mar. 8, 1941, the Senate by a vote of yeas 60, nays 31, not 
voting 4, amended and agreed to,(12) and the House by a vote 
of yeas 317, nays 71, present 1, not voting 40,(13) agreed 
to Senate amendments and passed, H.R. 1776, further to promote the 
defense of the United States, known as the Lend-Lease Act, which 
authorized the President to direct manufacture of defense articles for 
the government of any country whose defense the President deemed vital 
to the def ense of the United States, and to direct the lease or loan 
of defense articles. The act was approved in the following language: 
(14)
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12. 87 Cong. Rec. 2097. 77th Cong. 1st Sess.
13. Id. at p. 2178. See 87 Cong. Rec. 815, 77th Cong. 1st Sess., Feb. 
        8, 1941, for initial House approval of this bill by a vote of 
        yeas 260, nays 165, not voting 6.
14. The text is taken from 55 Stat. 31 (Pub. L. No. 77-11), Mar. 11, 
        1941.
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        Be it enacted by the Senate and House of Representatives of the 
    United States of America in Congress assembled, That this Act may 
    be cited as ``An Act to Promote the Defense of the United States''.
        Sec. 2. As used in this Act--
        (a) The term ``defense article'' means--
        (1) Any weapon, munition, aircraft, vessel, or boat;
        (2) Any machinery, facility, tool, material, or supply 
    necessary for the manufacture, production, processing, repair, 
    servicing, or operation of any article described in this 
    subsection. . . .
        Sec. 3. (a) Notwithstanding the provisions of any other law, 
    the President may, from time to time, when he deems it in the 
    interest of national defense, authorize the Secretary of War, the 
    Secretary of the Navy, or the head of any other department or 
    agency of the Government--

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        (1) To manufacture in arsenals, factories, and shipyards under 
    their jurisdiction, or otherwise procure, to the extent to which 
    funds are made available therefor, or contracts are authorized from 
    time to time by the Congress, or both, any defense article for the 
    government of any country whose defense the President deems vital 
    to the defense of the United States.
        (2) To sell, transfer title to, exchange, lease, lend, or 
    otherwise dispose of, to any such government any defense article, 
    but no defense article not manufactured or procured under paragraph 
    (1) shall in any way be disposed of under this paragraph, except 
    after consultation with the Chief of Staff of the Army or the Chief 
    of Naval Operations of the Navy, or both. . . .(15)
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15. See 57 Stat. 2], 25, 78th Cong. 1st Sess. (Pub. L. No. 78-11), for 
        an amendment to this section.
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        (3) To test, inspect, prove, repair, outfit, recondition, or 
    otherwise to place in good working order, to the extent to which 
    funds are made available therefor, or contracts are authorized from 
    time to time by the Congress, or both, any defense article for any 
    such government, or to procure any or all such services by private 
    contract. . . .(16)
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16. See 58 Stat. 222, 223, 78th Cong. 2d Sess. (Pub. L. No. 78-304), 
        for an amendment to this provision.
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        (c) After June 30, 1943, or after the passage of a concurrent 
    resolution by the two Houses before June 30, 1943, which declares 
    that the powers conferred by or pursuant to subsection (a) are no 
    longer necessary to promote the defense of the United States, 
    neither the President nor the head of any department or agency 
    shall exercise any of the powers conferred by or pursuant to 
    subsection (a); except that until July 1, 1946, any of such powers 
    may be exercised to the extent necessary to carry out a contract or 
    agreement with such a foreign government made before July 1, 1943, 
    or before the passage of such concurrent resolution, whichever is 
    the earlier. . . .(17)
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17. See 59 Stat. 52, 79th Cong. 1st Sess. (Pub. L. No. 79-31); 58 Stat. 
        222, 223, 78th Cong. 2d Sess. (Pub. L. No. 78-304); and 57 
        Stat. 20, 78th Cong. 1st Sess. (Pub. L. No. 78-9), for 
        amendments to this provision.
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        Sec. 5. (a) The Secretary of War, the Secretary of the Navy, or 
    the head of any other department or agency of the Government 
    involved shall, when any such defense article or defense 
    information is exported, immediately inform the department or 
    agency designated by the President to administer section 6 of the 
    Act of July 2, 1940 (54 Stat. 714), of the quantities, character, 
    value, terms of disposition, and destination of the article and 
    information so exported.
        (b) The President from time to time, but not less frequently 
    than once every ninety days, shall transmit to the Congress a 
    report of operations under this Act except such information as he 
    deems incompatible with the public interest to disclose. Reports 
    provided for under this subsection shall be transmitted to the 
    Secretary of the Senate or the Clerk of the House of 
    Representatives, as the case may be, if the Senate or the House of 
    Representatives, as the case may be, is not in session.
        Sec. 6. (a) There is hereby authorized to be appropriated from 
    time to

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    time, out of any money in the Treasury not otherwise appropriated, 
    such amounts as may be necessary to carry out the provisions and 
    accomplish the purposes of this Act.
        (b) All money and all property which is converted into money 
    received under section 3 from any government shall, with the 
    approval of the Director of the Budget, revert to the respective 
    appropriation or appropriations out of which funds were expended 
    with respect to the defense article or defense information for 
    which such consideration is received, and shall be available for 
    expenditure for the purpose for which such expended funds were 
    appropriated by law, during the fiscal year in which such funds are 
    received and the ensuing fiscal year; but in no event shall any 
    funds so received be available for expenditure after June 30, 1946. 
    . . . (18)
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18. See 61 Stat. 449, 450, 80th Cong. 1st Sess. (Pub. L. No. 80-123), 
        for repeal of this provision which had been amended by 59 Stat. 
        52, 79th Cong. 1st Sess. (Pub. L. No. 79-31); 58 Stat. 222, 
        223, 78th Cong. 2d Sess. (Pub. L. No. 78-304); and 57 Stat. 20, 
        78th Cong. 1st Sess. (Pub. L. No. 78-9).
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        Sec. 11. If any provision of this Act or the application of 
    such provision to any circumstance shall be held invalid, the 
    validity of the remainder of the Act and the applicability of such 
    provision to other circumstances shall not be affected thereby.

Reserve Forces Limited to Western Hemisphere

Sec. 9.4 The House and Senate agreed to a provision restricting 
    employment of reserve components of the United States Army beyond 
    the limits of the Western Hemisphere in a Senate joint resolution 
    authorizing the President to activate the reserves.

    On Aug. 15, 1940,(19) the House by a vote of yeas 342, 
nays 34, not voting 54, agreed to Senate Joint Resolution 286, 
authorizing the President to order members and units of reserve 
components and retired personnel of the Regular Army into active 
military service. The joint resolution, which was passed by the Senate 
by a vote of yeas 71, nays 7, on Aug. 8, 1940,(20) and 
signed by the President on Aug. 27, 1940, as Public

[[Page 1823]]

Resolution No. 96,(1) contained the following restriction on 
use of reserves: (2)
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19. 86 Cong. Rec. 10429, 10448, 10449, 76th Cong. 3d Sess. See also 86 
        Cong. Rec. 10763, 76th Cong. 3d Sess., Aug. 22, 1940, for House 
        approval of the conference report.
20. Id. at p. 10068. The Senate by a vote of yeas 31, nays 45, rejected 
        a motion to recommit the joint resolution with instructions to 
        report it back forthwith with an amendment substituting 
        ``continental United States and Territories and possessions of 
        the United States'' in place of the remainder of section 1 
        beginning with ``Western Hemisphere.'' Id. at pp. 10067, 10068. 
        See also 86 Cong. Rec. 10791, 76th Cong. 3d Sess., Aug. 23, 
        1940, for Senate voice vote approval of this measure.
 1. See 86 Cong. Rec. 11089, 76th Cong. 3d Sess., Aug. 28, 1940, for 
        announcement in the Senate of Presidential approval.
 2. This excerpt is taken from 54 Stat. 858, 859, 76th Cong. 3d Sess.
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        . .  . [T]he members and units of the reserve components of the 
    Army of the United States ordered into active Federal service under 
    this authority shall not be employed beyond the limits of the 
    Western Hemisphere except in the territories and possessions of the 
    United States, including the Philippine Islands.

    After commencement of World War II, this provision was 
repealed.(3)
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 3. See 55 Stat. 799, 77th Cong. 1st Sess. (Pub. L. No. 77-338), 
        approved Dec. 13, 1941.
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Inducted Land Forces Limited to Western Hemisphere

Sec. 9.5 The House and Senate agreed to a provision restricting 
    employment of inducted land forces beyond the limits of the Western 
    Hemisphere in a conference report on the Selective Training and 
    Service Act of 1940.

    On Sept. 14, 1940,(4) the House by a vote of yeas 233, 
nays 124, present 2, not voting 70, agreed to a conference report on S. 
4164, the Selective Training and Service Act of 1940. This measure, 
passed as a conference report by the Senate on a vote of yeas 47, nays 
25, on Sept. 14, 1940,(5) and signed by the President on 
Sept. 16, 1940, as Public Law No. 783,(6) contained the 
following restriction on use of inducted land forces: (7)
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 4. 86 Cong. Rec. 12207, 12227, 12228, 76th Cong. 3d Sess.
 5. Id. at pp. 12156-61.
 6. See 86 Cong. Rec. 12290, 76th Cong. 3d Sess., Sept. 19, 1940, for 
        announcement in the Senate of Presidential approval.
 7. This excerpt is taken from 54 Stat. 885, 886, 76th Cong. 3d Sess.
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        (e) Persons inducted into the land forces of the United States 
    under this Act shall not be employed beyond the limits of the 
    Western Hemisphere except in the Territories and possessions of the 
    United States, including the Philippine Islands.

    After the commencement of World War II, this provision was 
repealed.(8)
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 8. See 55 Stat. 799, 77th Cong. 1st Sess. (Pub. L. No. 77-338) 
        approved Dec. 13, 1941. The House by a vote of 203 yeas, 202 
        nays, had agreed to H.J. Res. 222, extending the period of 
        conscription beyond the 12 months established in the Selective 
        Training and Service Act of 1940. 87 Cong. Rec. 6995, 7074, 
        7075, 77th Cong. 1st Sess., Aug. 12, 1941.

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