Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror

5 - Expanded Presidential Power During World War II: Nazi Saboteurs and Military Commissions

63 5 ex­ panded pres­ i­ den­ tial power dur­ ing world war ii nazi sab­ o­ teurs and mil­ i­ tary com­ mis­ sions World War II pre­ sented an­ other cri­ sis—not inter­ nal re­ bel­ lion but ex­ ter­ nal dan­ ger—that, like the Civil War, di­ rectly threat­ ened the na­ tion.1 Pres­ i­ dent Frank­ lin D. Roose­ velt, like Lin­ coln be­ fore him, ­ claimed that this emer­ gency jus­ tified in­ de­ pen­ dent pres­ i­ den­ tial ac­ tion.­ Though he often ­ worked with Con­ gress, he also acted uni­ lat­ er­ ally to re­ spond to ­ threats posed by Nazi Ger­ many and Im­ pe­ rial Japan. The ­ United ­ States for­ mally en­ tered World War II after Japan at­ tacked the U.S. Pa­ cific fleet at Pearl Har­ bor, in Ha­ waii (then a U.S. ter­ ri­ tory), on De­ cem­ ber 7, 1941. The na­ tion was ­ stunned by the sud­ den at­ tack, and Pres­ i­ dent Roose­ velt im­ me­ di­ ately asked Con­ gress to de­ clare war ­ against Japan, which Con­ gress did, on De­ cem­ ber 8, 1941. A few days later, Roose­ velt asked Con­ gress to de­ clare war ­ against Ger­ many and Italy, which Con­ gress did on De­ cem­ ber 11.2 Even be­ fore Pearl Har­ bor, how­ ever, Roose­ velt had cited na­ tional emer­ gency as a basis for tak­ ing uni­ lat­ eral ac­ tion in an­ tic­ i­ pa­ tion of war. After Ger­ many in­ vaded Po­ land in Sep­ tem­ ber 1939, Roose­ velt de­ clared a state of lim­ ited emer­ gency. Most of Eu­ rope ­ quickly fell to the Nazis. By mid-1940, Ger­ many ­ seemed ­ poised to in­ vade Brit­ ain, and Nazi con­ trol of Eu­ rope ­ seemed cer­ tain to pose a ­ threat to the ­ United ­ States. Brit­ ish prime min­ is­ ter Wins­ ton Church­ ill, as well as the Brit­ ish king, asked Roose­ velt to send help—in the form of naval de­ stroy­ ers. Be­ fore ­ France’s sur­ ren­ der, it had also asked the ­ United ­ States for de­ stroy­ ers. Roose­ velt de­ clined ­ France’s 64 expanded presidential power during world war ii re­ quest and hes­ i­ tated with the Brit­ ish, each time say­ ing he could not act with­ out ­ Congress’s au­ thor­ iza­ tion and was not con­ fi­ dent he could gain it. Con­ gress in fact ­ passed a law in June 1940 pro­ hib­ it­ ing the trans­ fer of mil­ i­ tary equip­ ment “es­ sen­ tial to the de­ fense of the ­ United ­ States” un­ less ap­ proved by the chief of naval op­ er­ a­ tions or the chief of staff of the army.3 None­ the­ less, Roose­ velt ul­ ti­ mately de­ cided, in late sum­ mer of 1940, that he would ex­ change fifty de­ stroy­ ers for ­ ninety-nine-year ­ leases on Brit­ ish naval bases in the Car­ ib­ bean and in New­ found­ land.4 At­ tor­ ney Gen­ eral (and fu­ ture Su­ preme Court jus­ tice) Rob­ ert Jack­ son wrote an opin­ ion con­ clud­ ing that the pres­ i­ dent had broad power to act in­ de­ pen­ dently with re­ gard to ­ foreign pol­ icy, bas­ ing this con­ clu­ sion in part on a 1936 Su­ preme Court de­ ci­ sion5 sug­ gest­ ing in dicta that the pres­ i­ dent had broad au­ thor­ ity to con­ duct ­ foreign re­ la­ tions and did not al­ ways need con­ gres­ sional au­ thor­ iza­ tion be­ fore act­ ing in this area. Jack­ son also cited the Com­ mander in Chief ­ Clause of the Con­ sti­ tu­ tion, as well as acts of Con­ gress that ar­ gu­ ably pro­ vided au­ thor­ ity for the ex­ change, as pro­ vid­ ing ad­ di­ tional sup­ port for Roose­ velt to act.6 Of ­ course, Con­ gress ­ seemed to have set lim­ its on pres­ i­ den­ tial power in this area ­ through the June 1940 law pro­ hib­ it­ ing the trans­ fer of mil­ i­ tary equip­ ment ab­ sent ap­ proval by mil­ i­ tary of­ fi­ cials.7 Roose­ velt ­ argued that, if he had gone to Con­ gress be­ fore mak­ ing the deal,­ speedy ac­ tion would...