Crisis and Command: A History of Executive Power from George Washington to George W. Bush

by John Yoo

  In United States v. Belmont, the Supreme Court again sided with the executive. It found that the recognition of the USSR, the international agreement, and the preemption of state law all fell within the President's constitutional powers to the exclusion of the states. "In respect of all international negotiations and compacts, and in respect of our foreign relations generally, state lines disappear. As to such purposes the State of New York does not exist." Presidents since have used this power to make literally thousands of international agreements with other countries without the Senate's advice and consent -- from 1939 to 1989, the United States entered into 11,698 executive agreements and only 702 treaties.83 The courts have upheld sole executive agreements several times since, including an agreement ending the Iranian hostage crisis and another preempting the state law claims of Holocaust survivors against German companies.84

  The Supreme Court did not grant the President these powers in foreign affairs. Only the Constitution could do that. Presidents from Washington onward had interpreted the Constitution's vesting of the Chief Executive and Commander-in-Chief authorities to give them the initiative to protect the national security, set foreign policy, and negotiate with other nations. Sutherland's opinions gave judicial recognition to decades of presidential practice; what had been the product of presidential enterprise and congressional acquiescence became formal constitutional law. Roosevelt would draw on these authorities as he maneuvered to send aid to the Allies and bring the United States into the war against the fascist powers.

  FDR had to draw on his well of presidential powers because he faced both a looming external threat and vocal domestic isolationism. As early as 1935, Roosevelt had concluded that Hitler's Germany posed a threat to the United States.85 As the Axis powers increased their militaries and launched offensives against their neighbors, the President became convinced that military force would be necessary to protect American interests. FDR's approach represented something of a revolution in American strategic thought. No longer would American national security depend on the safety provided by two oceans and control of the Western Hemisphere, where it had felt no reluctance to launch wars of its own.86 German defeat of Great Britain would remove a valuable buffer that had prevented European nations from naval and air access to the Americas. And if Hitler succeeded in gaining complete control of the resources of the European continent, Germany would become a superpower with the means to threaten the United States.87 A central objective of American strategy was to maintain a balance of power in Europe and Asia to contain expansionist Germany and Japan, but if war came, FDR and his advisors identified Hitler as the primary threat.88

  By December 1940, FDR could be relatively open with the public about his broader goals. In his famous "Arsenal of Democracy" speech, he accused the fascist powers of conquering Europe as a prelude to larger aims that threatened the United States. Never since "Jamestown and Plymouth Rock has our American civilization been in such danger as now," FDR warned.89 "The Nazi masters of Germany have made it clear that they intend not only to dominate all life and thought in their own country," FDR told the nation by radio, "but also to enslave the whole of Europe, and then to use the resources of Europe to dominate the rest of the world." He rejected the idea that the "broad expanse of the Atlantic and of the Pacific" would protect the United States. It was only the British navy that protected the oceans from the Nazis. The United States had to begin massive rearmament and provide arms and assistance to the free nations that were bearing the brunt of the fighting. FDR did not tell the public that he was already taking action to bring the nation closer to war, first against Europe to stop Hitler, while holding off Japanese expansion in Asia.

  FDR's strategic vision required several elements to succeed. The United States had to send military and financial aid to Britain and France, help those supplies cross the Atlantic Ocean and build up the United States military (especially the navy and army air corps). If the Allies' fortunes fell far enough, the nation would have to be prepared to intervene. Resistance would come from the many Americans who believed that Wilson had erred in entering World War I and wanted to avoid American involvement in another internecine squabble in Europe. Between 1939 and 1941, a majority of Americans grew to support aid to the Allies, but that was as far as they would go. By as late as May 1941, almost 80 percent of the public wanted the United States to stay out of the conflict. Seventy percent felt that FDR had gone too far or had helped Britain enough.90 Isolationists blamed American entry into World War I on President Wilson's use of his executive powers to tilt American neutrality toward Britain and France. Worried about a rerun, they pressed for strict limitations on presidential power to keep the United States out of the European war.91

  Opposition to American intervention took more concrete form than public opinion polls. Congress enacted Neutrality Acts in 1935, 1936, 1937, and 1939 to prevent the United States from aiding either side. Congress passed the 1935 Act after Germany repudiated the disarmament requirements of the Treaty of Versailles and Italy threatened to invade Ethiopia in defiance of the League of Nations. It required the President to proclaim, after the outbreak of war between two or more nations, an embargo of all arms, ammunition, or "implements of war" against the belligerents.92 It gave FDR the authority to decide when to terminate the embargo, but it left him little choice as to when to begin one.

  The Act prohibited the United States from helping a victim nation and punishing the aggressor, instead requiring a complete cutoff for both. FDR had privately opposed the law's mandatory terms, fought to keep his discretionary control over foreign affairs, and in signing the bill predicted that its "inflexible provisions might drag us into war instead of keeping us out."93 Later acts prohibited the extension of loans or financial assistance to belligerents,94extended the embargo to civil wars,95 and allowed the ban to cover only arms and munitions, but not raw materials. In 1939, Congress enacted an even tougher prohibition that sought to prevent belligerents from "cash-and-carry" transactions for raw materials by prohibiting American vessels from transporting anything to nations at war.

  Domestic resistance required FDR to adopt an approach that gave the appearance that the United States was being dragged into the war. By 1941, with Hitler in control of Europe, and Japan occupying large parts of China, FDR wanted to find a way for the United States to enter the war on the side of Britain. In August 1941, for example, FDR told Prime Minister Winston Churchill that he could not rely on Congress to declare war against Germany. Instead, FDR "would wage war, but not declare it." According to Churchill's account of their conversation at the Atlantic Conference, FDR said "he would become more and more provocative" and promised that "everything would be done to force an incident" that would "justify him in opening hostilities."96

  Roosevelt's plans to move the United States toward war depended in part on Congress. The Constitution gives Congress control over international and domestic interstate commerce, as well as the money and property of the United States. FDR could lay little claim to constitutional authority to dictate arms-export policies or to provide financial and material aid to the Allies. FDR initially hoped that the United States could provide enough assistance to Britain and France -- the United States would prove the "great Arsenal of Democracy," in his famous words -- to postpone the need for American military intervention in Europe. After the fall of France, FDR realized that Great Britain could not hold off the Nazis on its own, but he hoped to send enough aid to keep Britain independent while he prepared the American public for war. FDR pressed Congress for several changes to the Neutrality Acts that would send more help to the Allies. In the 1936 and 1937 Acts, for example, the administration won more presidential discretion to determine when a foreign war had broken out. By 1939, it succeeded in changing the law to allow the President to put off a proclamation of neutrality if necessary to protect American peace and security.97 This effectively allowed Britain and France, which controlled the sea routes to the Americas, to continue to receive aid.

>   FDR used this flexibility to continue supplying arms and money to China by not finding a war to exist there, even after Japan had attacked Beijing and Nanjing.98 Similarly, Roosevelt refused to invoke the Neutrality Acts when Germany invaded Czechoslovakia in 1939, or Russia in 1941, because a blanket embargo would have prevented American aid from flowing to the Allies.99 FDR was not living up to the spirit of the Neutrality Acts because by manipulating the embargo rules he was actually helping one side in various conflicts, but Congress would not allow him to go farther. FDR's proposals throughout 1939 and 1940 to reform the Neutrality Acts to allow for direct military aid to the Allies repeatedly failed.

  As his efforts to get Congress to change the Neutrality Acts flagged, FDR became more aggressive in calling forth his constitutional powers. He asked Attorney General Robert Jackson, "How far do you think I can go in ignoring the existing act -- even though I did sign it?" Vice President John Nance Garner and Secretary of the Interior Harold Ickes argued that the President's constitutional authority in foreign affairs allowed him to act beyond the Acts.100Instead of overriding them, however, Roosevelt simply became more creative in interpreting them. On May 22, 1940, as German armies swept through France, FDR ordered the sale of World War I-era equipment to the Allies; on June 3, he ordered the transfer of $38 million in weapons to U.S. Steel, which promptly sold them at no profit to the British and French. The administration argued that these sales did not violate the Neutrality Acts because the arms were "surplus."101 Three days later (just after the British had evacuated 300,000 soldiers from the German noose around Dunkirk), the navy sold 50 Hell Diver bombers, which had been introduced to service only in 1938, and 93 obsolete army bombers to Britain because they were "temporarily in excess of requirements."102 The sales occurred at a time when the United States Army could field only 80,000 combat troops in five divisions, while the German army in Western Europe deployed 2 million men in 140 divisions. The U.S. Army Air Corps had only 160 fighter planes and 52 heavy bombers.103 Announcing the decision on June 8, FDR told a news conference that "a plane can get out of date darned fast." Two days later, in a speech at the University of Virginia, FDR declared isolationism an "obvious delusion" and called for an Allied victory over "the gods of force and hate" to prevent a world run by totalitarian governments.104

  American aid came too little, too late; France requested an armistice on June 17, 1940. In the midst of a presidential campaign for an unprecedented third term, FDR sought bipartisan support for his policies and replaced isolationists in his cabinet with two internationalist Republicans: Henry Stimson as Secretary of War and Frank Knox as Secretary of the Navy. Both favored repealing the neutrality laws, boosting the U.S. military through a draft, and sending large amounts of aid to Great Britain.105 Britain's destroyer fleet, which had suffered almost 50 percent losses, needed reinforcements to block a German invasion force and safeguard its trade lifelines.106Churchill wrote to Roosevelt that acquiring American destroyers was "a matter of life and death."107 FDR reacted by planning to send two dozen PT boats immediately, and said that Navy lawyers who thought the sale illegal should follow orders or go on vacation.108After word of FDR's plans leaked, Congress enacted a law forbidding the sale of any military equipment "essential to the defense of the United States," as certified by the Chief of Naval Operations or the Army Chief of Staff, and reasserted a World War I law's ban on sending any "vessel of war" to a belligerent.109

  Congress's tightening of neutrality delayed FDR for two months. While the Battle of Britain raged in the skies, Churchill begged FDR for additional destroyers. "The whole fate of the war," the Prime Minister wrote in July, "may be decided by this minor and easily remediable factor," and he urged that "this is the thing to do now."110 FDR and his advisors planned a transfer to Britain of 50 World War I destroyers declared to be "surplus," even though similar warships from the same era were being activated for navy service. In exchange, Britain would provide basing rights in its Western Hemisphere territories to the United States. In August, the President concluded an executive agreement with Britain, kept secret at first and without congressional approval, to make the trade.

  FDR's advisors divided over the deal's legality. One legal advisor believed it violated the June 28 statute and the Espionage Act of 1917, which forbade sending an armed vessel to any belligerent while the United States remained neutral; State Department and Justice Department lawyers agreed. But Dean Acheson, then Undersecretary of the Treasury, argued that the June 28 law implicitly recognized the President's constitutional power to transfer any military asset in order to improve national security, while others recommended that the government first sell the destroyers to private companies that could then resell them to the British.111 Acheson even argued that the 1917 law applied only to ships that were built specifically on order for a belligerent and not to existing ships originally built or used for the navy.

  Attorney General Jackson drew on these ideas in his legal opinion blessing the deal, but also relied on the President's Commander-in-Chief power. "Happily there has been little occasion in our history for the interpretation of the powers of the President as Commander-in-Chief," Jackson wrote to FDR. "I do not find it necessary to rest upon that power alone." Nevertheless, "it will hardly be open to controversy that the vesting of such a function in the President also places upon him a responsibility to use all constitutional authority which he may possess to provide adequate bases and stations" for the most effective use of the armed forces. The perilous circumstances facing the United States reinforced the Commander-in-Chief's power. "It seems equally beyond doubt that present world conditions forbid him to risk any delay that is constitutionally avoidable."112 Any statutory effort by Congress to prevent the President from transferring military equipment to help American national security would be of "questionable constitutionality."

  Jackson defended the exclusion of Congress. He thought that the deal could take the form of an executive agreement because it required neither the appropriation of funds nor an obligation to act in the future. Justice Sutherland's opinion in Curtiss-Wright, which the Attorney General extensively quoted, supported the argument. Jackson had a more difficult time with the Neutrality Acts. He read the June 28 law to recognize the President's authority to transfer naval vessels to Britain, subject only to the requirement that they be surplus or obsolete. It did not prohibit the transfer of property "merely because it is still used or usable or of possible value for future use," but only if the transfer weakened the national defense. The "overage" destroyers, as he called them, could be found to fall outside the statute and hence within the President's authority, which must have derived from the Commander-in-Chief power, to exchange them for valuable military bases. Jackson, however, advised that transferring brand-new mosquito boats would violate Congress's ban on sending ships to a belligerent.

  Jackson issued an even broader reading of the Commander-in-Chief power in May 1941, when FDR allowed British pilots to train in American military schools. Under the Commander-in-Chief power, the President "has supreme command over the land and naval forces of the country and may order them to perform such military duties as, in his opinion, are necessary or appropriate for the defense of the United States."113 The President could "command and direct the armed forces in their immediate movements and operations" and "dispose of troops and equipment" to promote the national security. Jackson read the passage of Lend-Lease as support for FDR's judgment that helping Britain was important to the national defense. If the President had full constitutional authority to use the armed forces, even to use military force, to protect the nation by helping Britain, then he must also have the lesser power to train British airmen. "I have no doubt of the President's lawful authority to utilize forces under his command to instruct others in matters of defense which are vital to the security of the United States." It "would be anomalous indeed," Jackson observed, if the military could provide Britain with arms but could not train the British how to use them.

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p; Reaction to the destroyers-for-bases deal, announced in early August, attacked FDR's methods more than his goals. Roosevelt worried that his energetic use of executive power would feed fears that he was becoming an autocrat, worries punctuated by his nomination that summer for an unprecedented third term as President. Leaks of secret Anglo-American staff talks and announcement of a joint U.S.-Canadian defense board already had isolationists attacking FDR for taking the United States into war. FDR predicted that revelation of the executive agreement would "raise hell with Congress" and lead to accusations that he was a "warmonger" and "dictator," and might torpedo his reelection hopes.114

  FDR's first two predictions quickly came true. His Republican opponent, Wendell Willkie, supported the policy but declared that FDR's unilateral action was "the most dictatorial and arbitrary act of any President in the history of the United States."115 Edwin Borchard, a Yale professor of international law, argued that Roosevelt had assumed dictatorial powers, placed himself above the law, and threatened to "break down constitutional safeguards." The Constitution, Borchard wrote, "does not give the President carte blanche to do anything he pleases in foreign affairs."116 The nation's leading scholar of constitutional law, Edward Corwin of Princeton, attacked Jackson's opinion as "an endorsement of unrestrained autocracy in the field of our foreign relations, neither more nor less." In the New York Times, Corwin asked "why may not any and all of Congress's specifically delegated powers be set aside by the President's 'executive power' and the country be put on a totalitarian basis without further ado?"117

  Despite these ringing attacks on presidential power, the destroyers-for-bases deal proved remarkably popular -- Gallup polls showed 62 percent in favor -- encouraging even bolder steps.118 By October 1940, FDR asked for and received appropriations of $17.7 billion for national defense -- his administration's original estimate for the year had been $1.84 billion -- and defense spending doubled the following year.119 In June 1940, he called for the first peacetime draft in American history, which Congress enacted in September only after Willkie publicly agreed. A Wall Street lawyer and former Democrat, Willkie was a dark-horse candidate who had won the nomination without ever having occupied public office. His attacks on the New Deal had gained little traction during the campaign, so Willkie campaigned against a "warmonger" and dictator who had made "secret agreements" to enter a war that would kill thousands of young Americans. "If his promise to keep our boys out of foreign wars is no better than his promise to balance the budget," Willkie said on the stump, "they're already almost on the transports."120 By the end of October, Willkie came within four points of the President, and Roosevelt went on a speaking tour to reassure mothers in a speech at Boston Garden on October 30, 1940, that "your boys are not going to be sent into any foreign wars."121 Though the polls showed the election close, FDR prevailed by 27 million to Willkie's 22 million and an Electoral College majority of 449-82.