Crisis And Command Part 5

Four years later, Humphrey's estate eventually took his case to the Supreme Court, which dealt Roosevelt and the Presidency a serious blow. The Justice Department argued that the FTC statute was an unconst.i.tutional infringement on the President's removal power and his const.i.tutional duty to faithfully execute the laws.54 Roosevelt's lawyers relied on Roosevelt's lawyers relied on Myers v. United States Myers v. United States, a nine-year-old case that had struck down a law requiring Senate consent before a President could fire a postmaster. In Myers Myers, Chief Justice (and former President) William Howard Taft had written: "The vesting of the executive power in the President was essentially a grant of the power to execute the laws. But the President alone and unaided could not execute the laws. He must execute them by the a.s.sistance of subordinates."55 Taft concluded that the President's duty to implement the laws required that "he should select those who were to act for him under his direction" and that he must also have the "power of removing those for whom he cannot continue to be responsible." Based on this precedent, FDR seemed on safe ground. Taft concluded that the President's duty to implement the laws required that "he should select those who were to act for him under his direction" and that he must also have the "power of removing those for whom he cannot continue to be responsible." Based on this precedent, FDR seemed on safe ground.

On the same day that it decided Schechter Poultry Schechter Poultry, May 27, 1935, the Court substantially revised its removal jurisprudence. With Justice Sutherland writing, the majority held that the FTC "cannot in any proper sense be characterized as an arm or an eye of the executive." Creating a wholly new category of government, Sutherland described the FTC's functions as "quasi legislative or quasi judicial" because it investigated and reported to Congress and conducted initial adjudications on claims of anti-compet.i.tive violations before a case went to federal court.56 The FTC acted "as an agency of the legislative and judicial departments," and was "wholly disconnected from the executive department." The FTC acted "as an agency of the legislative and judicial departments," and was "wholly disconnected from the executive department." Myers Myers, and the President's discretionary removal authority, only applied to "purely executive officers" such as the Secretary of State or a postmaster.

The decision has long been puzzling, especially its recognition of a fourth branch of government that falls outside the three mentioned in the Const.i.tution. Humphrey's Executor's Humphrey's Executor's reasoning, however, has shriveled on the vine. Recent cases continue to recognize Congress's authority to shield certain government agents (such as the independent counsel) from removal but because of the importance of their independence to their functions, even when they fall within the executive branch, not because they perform quasi legislative or judicial functions. reasoning, however, has shriveled on the vine. Recent cases continue to recognize Congress's authority to shield certain government agents (such as the independent counsel) from removal but because of the importance of their independence to their functions, even when they fall within the executive branch, not because they perform quasi legislative or judicial functions.57 Another oddity is that FDR lost at the hands of Justice Sutherland and the conservatives on the Court, who were (as we shall see) strong supporters of executive power in foreign affairs. Another oddity is that FDR lost at the hands of Justice Sutherland and the conservatives on the Court, who were (as we shall see) strong supporters of executive power in foreign affairs.

As they demonstrated in other decisions, the Justices were concerned with the New Deal's great expansion of federal power. They may have believed that one way to blunt centralization in the national government was to force dispersion once at the federal level.58 Not surprisingly, Congress found the Court's approach quite congenial. It could delegate authority to the executive branch while preventing the President from exercising direct control over the agency. This would naturally make the independent agencies more responsive to congressional wishes, which controlled their funding and held oversight hearings into their activities. And since the agencies were still within the executive branch, Congress could disclaim any formal responsibility for unpopular regulatory decisions. After Not surprisingly, Congress found the Court's approach quite congenial. It could delegate authority to the executive branch while preventing the President from exercising direct control over the agency. This would naturally make the independent agencies more responsive to congressional wishes, which controlled their funding and held oversight hearings into their activities. And since the agencies were still within the executive branch, Congress could disclaim any formal responsibility for unpopular regulatory decisions. After Humphrey's Executor Humphrey's Executor, Congress added "for cause" limitations on removal for members of the National Labor Relations Board, the Civil Aeronautics Board, and the Federal Reserve Board.59 Creation of the permanent administrative state strained the Presidency. With the Supreme Court and Congress limiting the main const.i.tutional tool of executive control, independent agencies might be able to pursue policies at odds with the President's understanding of federal law. Or they might press policy mandates in a way that caused conflict with other agencies, created redundancies, or ran counter to other federal policies. A number of methods for taming the behemoth were possible. Presidents could impose order by forcing the menagerie of departments, commissions, and agencies to act according to a common plan, and thereby coordinate the activities of the government rationally; the administrative state could be freed of direct control by either the President or Congress, and instead be subject to a variety of checks and balances by all three branches; or the agencies could work closely with private business and interest groups, which would raise objections to agency action with the courts, Congress, and the White House.

FDR rejected the idea that the administrative state should float outside the Const.i.tution's traditional structure, and he continued to fire the heads of agencies even when Congress had arguably limited his power of removal. FDR, for example, removed the chairman of the Tennessee Valley Authority in 1938, even though Congress had established that he could only be fired for applying political tests or any other standards but "merit and efficiency" in running the agency. The chairman had attacked his TVA colleagues and had declared that he took orders from Congress, not the President. FDR removed him on the ground that the Executive Power and Take Care Clauses of the Const.i.tution required that he control his subordinates.60 FDR established various super-cabinet ent.i.ties with names like the Executive Council, the National Emergency Council, and the Industrial Emergency Committee, composed of cabinet officers, commission heads, and White House staff. None of these improvisations provided a structural solution to the challenge posed by the administrative state, as these various bodies proved a poor forum for rational planning and control over the varied arms of the federal government. FDR established various super-cabinet ent.i.ties with names like the Executive Council, the National Emergency Council, and the Industrial Emergency Committee, composed of cabinet officers, commission heads, and White House staff. None of these improvisations provided a structural solution to the challenge posed by the administrative state, as these various bodies proved a poor forum for rational planning and control over the varied arms of the federal government.

FDR's last thrust to control the administrative state required the cooperation of Congress. In 1936, the President asked a commission, headed by administration expert Louis Brownlow, to recommend inst.i.tutional changes for the improved governance of the administrative state. A year later, it reported: "[T]he President needs help." Its bottom line was clear. "Managerial direction and control of all departments and agencies of the Executive Branch," Brownlow wrote, "should be centered in the President."

According to Brownlow, the President's political responsibilities did not match his formal authorities. "While he now has popular responsibility for this direction," the committee reported, "he is not equipped with adequate legal authority or administrative machinery to enable him to exercise it."61 Brownlow and FDR, who approved the report, held the usual concern that the administrative state was wasteful, redundant, and contradictory, but more importantly, they worried that it would become so independent as to lose touch with the people. The administrative state suffered from a democracy deficit. Brownlow and FDR, who approved the report, held the usual concern that the administrative state was wasteful, redundant, and contradictory, but more importantly, they worried that it would become so independent as to lose touch with the people. The administrative state suffered from a democracy deficit.

The Brownlow Committee concluded that Congress must give the President more management resources, while keeping the chief executive at the center of decision-making. It advised that to make "our Government an up-to-date, efficient, and effective instrument for carrying out the will of the Nation," presidential control must be enhanced. It recommended the creation of a new ent.i.ty, the Executive Office of the President (which would house the Bureau of the Budget), six new White House a.s.sistants to the President, centralization of the government's budgets and planning, and the merger of independent agencies into the cabinet departments. Brownlow's report did not call for a professional secretariat that would supervise the activities of the government, as existed in Great Britain. Rather, the new a.s.sistants to the President and the Bureau of the Budget would provide information to the President and carry out his orders, with Roosevelt still making all critical policy decisions.62 By centralizing the administrative state under the Presidency, it would become directly accountable to Congress and the American people. "Strong executive leadership is essential to democratic government today," the report concluded. "Our choice is not between power and no power, but between responsible but capable popular government and irresponsible autocracy." By centralizing the administrative state under the Presidency, it would become directly accountable to Congress and the American people. "Strong executive leadership is essential to democratic government today," the report concluded. "Our choice is not between power and no power, but between responsible but capable popular government and irresponsible autocracy."63 FDR had the report's recommendations distilled into a bill he presented to the congressional leadership in January 1937. In a four-hour presentation, FDR personally laid out the plan and declared: "The President's task has become impossible for me or any other man. A man in this position will not be able to survive White House service unless it is simplified. I need executive a.s.sistants with a 'pa.s.sion for anonymity' to be my legs."64 Even though the 75th Congress began with a two-thirds Democratic majority, it was wary of FDR's plans and less than thrilled at the prospect of greater presidential influence over the New Deal state. Roosevelt's plan undermined the benefits to Congress of delegation, because it would weaken Congress's influence over agency decisions while expanding the President's authority over what was essentially lawmaking. Even though the 75th Congress began with a two-thirds Democratic majority, it was wary of FDR's plans and less than thrilled at the prospect of greater presidential influence over the New Deal state. Roosevelt's plan undermined the benefits to Congress of delegation, because it would weaken Congress's influence over agency decisions while expanding the President's authority over what was essentially lawmaking.

Brownlow's report landed before Congress at the same time as FDR's court-packing plan. While the two plans addressed different problems, they both fed fears of presidential aggrandizement at the expense of the other branches. Key congressional leaders had not been consulted or briefed on the reorganization plan, which they proceeded to attack as another step toward despotism, or a power grab by the university intellectuals who no doubt would run the new agencies, all at a time when totalitarianism was raising its ugly head in Europe. In 1938, the bill failed in the House and was replaced by a more modest bill that gave FDR a limited ability to reorganize government.65 Under that authority, FDR still managed to locate the Bureau of the Budget within a new Executive Office of the President. As the Office of Management and Budget, it today exercises central review over the economic costs and benefits of all federal regulation, one of the President's most powerful tools for rationalizing the activities of the administrative state. Under that authority, FDR still managed to locate the Bureau of the Budget within a new Executive Office of the President. As the Office of Management and Budget, it today exercises central review over the economic costs and benefits of all federal regulation, one of the President's most powerful tools for rationalizing the activities of the administrative state.66 FDR also expanded the resources within the White House, an inst.i.tution now separate from the Executive Office of the President, which enabled him to gain more information and control over the cabinet agencies. Still, the independent agencies remained outside the cabinet departments. FDR never successfully established any single ent.i.ty to coordinate the activities of the entire administrative state, and his failed bill demonstrates the enduring const.i.tutional checks on the Presidency. Only Congress could pa.s.s the laws needed to reorganize the cabinet departments, reshape the jurisdiction and structure of the independent agencies, and provide the funds and positions in a new, revitalized White House.67 While FDR suffered defeats at the hands of Congress, he continued to claim and exercise inherent executive authority that went beyond mere control of personnel. He signed statements to object to riders inserted into needed spending bills, which he believed to be unconst.i.tutional. Congress, for example, attempted to force the President to fire three bureaucrats it believed were "subversives" by specifically barring any federal funds to pay their salaries. Roosevelt signed the bill but objected to its unconst.i.tutional end run around the President's power over the removal of executive branch officials. Ultimately, the officials left within months, but they sued for their back pay all the way to the Supreme Court, which agreed that Congress had violated the Const.i.tution.68 President Roosevelt also followed Lincoln's example in using his executive power to fight racial discrimination. Although Lincoln had relied on his power as Commander-in-Chief to free the slaves, the Southern states imposed racial segregation in the years after the Civil War, ultimately with the approval of the Supreme Court.69While FDR did not take segregation head on, he issued an executive order in 1941 to prohibit racial discrimination in employment on federal defense contracts.70 Roosevelt had no statutory authority to order the federal government to provide fair treatment in employment to all, regardless of race. He could rely only upon his const.i.tutional authority as President to oversee the management of federal programs. Once war began, President Roosevelt could clarify that his orders were taken under his power as both Chief Executive and Commander-in-Chief in wartime. Roosevelt had no statutory authority to order the federal government to provide fair treatment in employment to all, regardless of race. He could rely only upon his const.i.tutional authority as President to oversee the management of federal programs. Once war began, President Roosevelt could clarify that his orders were taken under his power as both Chief Executive and Commander-in-Chief in wartime.71 FDR's orders would not be the first, nor the last, time that the cause of racial equality would depend on a broad understanding of presidential power. FDR's orders would not be the first, nor the last, time that the cause of racial equality would depend on a broad understanding of presidential power.

The New Deal depended upon broad theories of the Presidency and the role of the federal government in national life. What remains less clear is whether FDR's fundamental reorientation of the government into a positive, active instrument of national policy was worthwhile. Contemporary critics of the modern Presidency question whether Chief Executives, acting alone, have led the nation into disastrous wars. We need also ask, but rarely do, whether the expansion of executive power at home has benefited the nation. To the extent we debate the desirability of the administrative state, most American scholars today bemoan the fact that the New Deal did not go far enough. They argue that the New Deal failed because it did not achieve a full-fledged European welfare state, or that FDR's coalition fragmented and failed to follow through on the promise of liberal reform.72 These critics, who usually are those most likely to criticize the President in foreign affairs, cry out for more executive power domestically. These critics, who usually are those most likely to criticize the President in foreign affairs, cry out for more executive power domestically.

Vesting the President with more authority to control the government's regulation of the economy may make sense during an emergency, but it did not work in solving the Great Depression. Economists recognize today that the New Deal neither put an end to high rates of unemployment nor restored consistent economic growth. FDR's monetary and fiscal policy often pursued the opposite of what was needed, and full employment would return only with American rearmament in the first years of World War II. Other New Deal policies were counterproductive, such as allowing industry to set production quotas, reduce production to raise prices, and restrict employment by raising minimum wages. Economists similarly doubt whether the creation of national regulation of the securities markets and other industries contributed to the eventual economic recovery, even though it was certainly valuable for postwar prosperity. If, as Milton Friedman argues, the Great Depression would have proven to be only a normal recession with some deft monetary policy from the Federal Reserve, it bears asking whether the permanent bureaucracy was needed at all.

Decades later, American Presidents would campaign against the excessive regulation set in place by the New Deal. The administrative state we have today failed to end the Great Depression. Was the administrative state worth the price? There is little doubt that the explosion in the size and power of the administrative state has transformed the nature of American politics.

The federal government has dramatically expanded the scope of regulation to include not just national economic activity, such as workplace conditions and minimum wages and hours, but also the environment and endangered species, educational standards, state and local corruption, consumer product safety, communications technology and ownership, illegal narcotics and gun crimes, and corporate governance. It has produced less deliberation in Congress, which now delegates sweeping powers to the agencies, and has placed the initial authority to issue federal law affecting private individuals in administrative agencies. Those agencies are not directly accountable to the people through elections, except for the thin layer of presidential appointees at the very top. Special-interest groups have come to play a significant role in influencing both congressional committees and agencies, gaining economic "rents" for their members at the expense of the broader public.

This is not a plea to return to the laissez-faire capitalism of the 19th-century variety. The administrative state no doubt has produced social benefits, and there are important areas where the greater information and expertise held by the executive agencies improves government policy, but it remains an open question whether the centralization of economic and social regulation in the national government has been, on balance, a success. It is undeniable that the requirement of minimum national standards, most especially in the area of civil rights, was a necessary and long-overdue change. Equality under law should not have been a matter of legislative or executive discretion, but a requirement of the Reconstruction Amendments to the Const.i.tution. National control of other economic and social issues, however, may not have been worth the cost in increased government spending, larger budget deficits, a permanent government apparatus of unprecedented size (at least in the American experience), the rise of interest-group politics, and interference with efficient market mechanisms.

Federal agencies may impose uniform rules, but they may not impose the best rules. In the absence of broad national regulation, states could enact a diversity of policies on issues such as the economy, the environment, education, crime, and social policy. People could vote with their feet by moving to states that adopt their preferred package of policies, while experimentation could identify the most effective solutions to economic and social problems. The New Deal's concentration of regulatory authority in Washington, D.C., sapped the vitality of the states, whose powers are only a pale imitation of those they held in the 19th century.73 FDR certainly deserves credit for restoring Americans' optimism and faith in government, and for alleviating the suffering inflicted by the Depression, but it remains doubtful whether the great wrenching in the fabric of our federal system of government and the expansion in the President's const.i.tutional powers in the domestic realm can be justified by any limited advance in triggering a recovery. Despite its revolution in domestic presidential power and government structure, the New Deal appears to have had little impact on ending the worst economic collapse in American history. FDR certainly deserves credit for restoring Americans' optimism and faith in government, and for alleviating the suffering inflicted by the Depression, but it remains doubtful whether the great wrenching in the fabric of our federal system of government and the expansion in the President's const.i.tutional powers in the domestic realm can be justified by any limited advance in triggering a recovery. Despite its revolution in domestic presidential power and government structure, the New Deal appears to have had little impact on ending the worst economic collapse in American history.

THE GATHERING STORM.

FDR'S CLAIM TO GREATNESS lies not in the New Deal, but his defeat of one of the greatest external threats our nation has faced, fascist Germany and j.a.pan. FDR exercised farsighted vision in preparing the nation for a necessary war unwanted by a large minority, and arguably a majority, of Congress and the American people. In the process, the President skirted, stretched, and broke a series of neutrality laws designed to prevent American entry into World War II. Sometimes he went to Congress and the American people to seek support for his actions, sometimes he did not, but throughout the lead-up to war, FDR set national security policy within the executive branch.74 Debate has raged for decades over whether the j.a.panese attack on Pearl Harbor was a surprise, or whether FDR or the American government had advance knowledge of the attack. Some have suspected that FDR believed that the only way to rouse the American people to war was for the United States to be attacked first. In this respect, FDR had the same instincts as Lincoln. The conventional wisdom today attributes more of the blame for Pearl Harbor to incompetence by the field commanders and complacency in Washington, and has put to rest the idea that FDR actually knew that the j.a.panese would attack Pearl Harbor.75 Recent scholarly work suggests that FDR managed events to maneuver the j.a.panese into a corner, with a strong possibility that the j.a.panese would attack American interests somewhere in the Pacific, most likely the Philippines. Roosevelt's imposition of an arms, steel, and oil embargo against the j.a.panese Empire was designed to force Tokyo to either withdraw from China or attack American, British, and Dutch possessions in Asia for natural resources.76 FDR pressed j.a.pan in order to bring the United States to bear against the greater threat of Germany. FDR pressed j.a.pan in order to bring the United States to bear against the greater threat of Germany.77 FDR could not have walked the United States to the brink of war without a broad understanding of the President's const.i.tutional powers and the willingness to exercise them. FDR could not have walked the United States to the brink of war without a broad understanding of the President's const.i.tutional powers and the willingness to exercise them.

Roosevelt had laid claim to sweeping executive authority in foreign affairs even before war with Germany and j.a.pan looked certain. One a.s.sist came from the hands of an unlikely source: Justice Sutherland. While Sutherland believed the New Deal state unconst.i.tutionally trampled on the natural rights of individuals, as Hadley Arkes has argued, he still strongly supported presidential power in foreign affairs.78 This became clear in the case This became clear in the case United States v. Curtiss-Wright Export Corporation United States v. Curtiss-Wright Export Corporation.79 In 1934, Congress had delegated to the President the authority to cut off all U.S. arms sales to Bolivia and Paraguay, which were fighting a nasty border war, if he found the ban would advance peace in the region. FDR proclaimed an arms embargo in effect on the same day that Congress pa.s.sed the law, and the next day the Justice Department prosecuted four executives of the Curtiss-Wright Export Corporation for trying to sell 15 machine guns to Bolivia. Curtiss-Wright, which traced its roots to the Wright brothers, would supply the engines for the DC-3 air transport and the B-17 Flying Fortress and build the P-40 fighter.80 Taking its case all the way to the Supreme Court, the company argued that the law had delegated unconst.i.tutional authority over international commerce to the President. If Congress wanted to impose an arms embargo, it would have to do it itself, not just hand the authority to FDR. Taking its case all the way to the Supreme Court, the company argued that the law had delegated unconst.i.tutional authority over international commerce to the President. If Congress wanted to impose an arms embargo, it would have to do it itself, not just hand the authority to FDR.

In a remarkable and controversial opinion, Justice Sutherland declared that the const.i.tutional standards that ruled the government's actions domestically did not apply in the same way to foreign affairs. The Const.i.tution's careful limitation of the national government's powers, so as to preserve the general authority of the states, did not extend beyond the water's edge. In the arena of foreign affairs, Sutherland maintained, the American Revolution had directly transferred the full powers of national sovereignty from Great Britain to the Union. "The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties," Sutherland wrote, "if they had never been mentioned in the Const.i.tution, would have vested in the federal government as necessary concomitants of nationality."81 In words that could have been cribbed from Abraham Lincoln, the Court declared that the "Union existed before the Const.i.tution," and therefore the Union could exercise the same powers over war and peace as any other nation. In words that could have been cribbed from Abraham Lincoln, the Court declared that the "Union existed before the Const.i.tution," and therefore the Union could exercise the same powers over war and peace as any other nation.

An argument in favor of exclusive federal power over national security and international relations, however, does not dictate which branch should exercise it. Sutherland located that authority in the President because of the dangers posed by foreign nations and the executive branch's structural ability to act swiftly and secretly. "In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation." Echoing Hamilton and Jefferson, and quoting then-Congressman John Marshall, Sutherland declared, "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations."

It did not matter that, on the facts of Curtiss-Wright Curtiss-Wright, FDR was acting pursuant to congressional delegation. "We are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President," which does not "require as a basis for its exercise an act of Congress." Sutherland found great advantages to the United States in vesting these powers in the executive, rather than the legislature. The President, not Congress, "has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He has confidential sources of information."

Another case gave Justice Sutherland the opportunity to deliver a second blessing to FDR's vigorous use of his presidential powers. In 1933, Roosevelt ended American efforts to isolate the Soviet Union and unilaterally recognized its communist government. As part of an executive agreement with the Soviets, the United States took on all rights and claims of the USSR against American citizens, such as those involving the expropriation of property. The federal government sued to recover money and property held by Russians in the United States, which were allegedly owed to the Soviet government. What made the recognition of the Soviet Union so remarkable was that FDR not only had set the policy of the United States and entered into an international agreement on his own, but the government used that agreement to set aside state property and contract rules -- all without any action of Congress or the Senate.

Property owners resisted. Augustus Belmont, a New York City banker, refused to turn over deposits held on behalf of the Petrograd Metal Works after the nationalization of all Russian corporations in 1918. FDR's executive agreement with the Soviets required that legal ownership of the profits be transferred to the United States government. Belmont's estate refused to turn the money over because, it claimed, the property law of New York state protected it.82 In United States v. Belmont 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 const.i.tutional 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. 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 Const.i.tution could do that. Presidents from Washington onward had interpreted the Const.i.tution'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 const.i.tutional 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. 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. 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 j.a.pan, but if war came, FDR and his advisors identified Hitler as the primary threat. A central objective of American strategy was to maintain a balance of power in Europe and Asia to contain expansionist Germany and j.a.pan, 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 "a.r.s.enal 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 n.a.z.i 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 n.a.z.is. The United States had to begin ma.s.sive rearmament and provide arms and a.s.sistance 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 j.a.panese expansion in Asia. "The n.a.z.i 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 n.a.z.is. The United States had to begin ma.s.sive rearmament and provide arms and a.s.sistance 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 j.a.panese 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. 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 pa.s.sed 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. 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 a.s.sistance to belligerents, Later acts prohibited the extension of loans or financial a.s.sistance 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. 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 j.a.pan 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 Const.i.tution 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 const.i.tutional 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 a.s.sistance to Britain and France -- the United States would prove the "great a.r.s.enal 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 n.a.z.is 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. 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 j.a.pan 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. 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. 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 const.i.tutional 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 const.i.tutional 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 h.e.l.l 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." Three days later (just after the British had evacuated 300,000 soldiers from the German noose around Dunkirk), the navy sold 50 h.e.l.l 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. 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 G.o.ds of force and hate" to prevent a world run by totalitarian governments. 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 G.o.ds 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. 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. 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 rea.s.serted 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 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 const.i.tutional power to transfer any military a.s.set 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. 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 const.i.tutional authority which he may possess to provide adequate bases and stations" for the most effective use of the armed forces. The perilous circ.u.mstances 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 const.i.tutionally avoidable."112 Any statutory effort by Congress to prevent the President from transferring military equipment to help American national security would be of "questionable const.i.tutionality." Any statutory effort by Congress to prevent the President from transferring military equipment to help American national security would be of "questionable const.i.tutionality."

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 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 pa.s.sage of Lend-Lease as support for FDR's judgment that helping Britain was important to the national defense. If the President had full const.i.tutional 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. 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 pa.s.sage of Lend-Lease as support for FDR's judgment that helping Britain was important to the national defense. If the President had full const.i.tutional 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.

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 h.e.l.l 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 a.s.sumed dictatorial powers, placed himself above the law, and threatened to "break down const.i.tutional safeguards." The Const.i.tution, Borchard wrote, "does not give the President Edwin Borchard, a Yale professor of international law, argued that Roosevelt had a.s.sumed dictatorial powers, placed himself above the law, and threatened to "break down const.i.tutional safeguards." The Const.i.tution, Borchard wrote, "does not give the President carte blanche carte blanche to do anything he pleases in foreign affairs." to do anything he pleases in foreign affairs."116 The nation's leading scholar of const.i.tutional law, Edward Corwin of Princeton, attacked Jackson's opinion as "an endors.e.m.e.nt of unrestrained autocracy in the field of our foreign relations, neither more nor less." In the The nation's leading scholar of const.i.tutional law, Edward Corwin of Princeton, attacked Jackson's opinion as "an endors.e.m.e.nt of unrestrained autocracy in the field of our foreign relations, neither more nor less." In the New York Times 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. 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." 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 rea.s.sure mothers in a speech at Boston Garden on October 30, 1940, that "your boys are not going to be sent into any foreign wars." By the end of October, Willkie came within four points of the President, and Roosevelt went on a speaking tour to rea.s.sure 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. 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.

After the election, FDR redoubled his efforts to send aid to Britain. He authorized secret staff talks between American and British military planners, who recommended a grand strategy of defeating Germany first while holding j.a.pan to a stalemate.122 In November, FDR ordered the army to make B-17 bombers immediately available to the British, to be replaced by British planes on order in American factories, and he discussed making half of all American arms production available to the British. British finances collapsed in late November; the country could no longer pay for the material it needed to continue the war. Britain's amba.s.sador to the United States, Lord Lothian, appealed to the American public on November 23 by saying to a group of journalists, "Well, boys," he said, "Britain's broke; it's your money we want." In November, FDR ordered the army to make B-17 bombers immediately available to the British, to be replaced by British planes on order in American factories, and he discussed making half of all American arms production available to the British. British finances collapsed in late November; the country could no longer pay for the material it needed to continue the war. Britain's amba.s.sador to the United States, Lord Lothian, appealed to the American public on November 23 by saying to a group of journalists, "Well, boys," he said, "Britain's broke; it's your money we want."123 Lothian's report of Britain's functional bankruptcy shocked the White House into action. FDR approved the sale of $2.1 billion in weapons that the British could not pay for, as well as the diversion of $700 million in Reconstruction Finance Corporation funds to underwrite the factory expansions needed for the increased arms sales.124The President hit upon one of his most artful evasions of neutrality, Lend-Lease, which would "get away from the dollar sign," as he told reporters at a December 17, 1940, press conference. The United States would "lend" Britain weapons and munitions and, rather than demand immediate payment, would expect their return after the war's end. Of course, the idea was a complete fiction; war would consume the arms. FDR deployed a homey a.n.a.logy: if a house were on fire, a neighbor would lend a garden hose with the expectation that it would be returned later, rather than demanding $15 for the cost of the hose.125 Lend-Lease required congressional action. In his famous "a.r.s.enal of Democracy" speech on December 29, Roosevelt defended Lend-Lease and broader aid to the Allies with his most stirring language. FDR declared that the n.a.z.is posed the most direct threat to the security of the United States since its founding. To avoid war, the United States would have to become the great "a.r.s.enal of democracy" for the free nations carrying on the fight. The United States would be less likely to get into war "if we do all we can now to support the nations defending themselves against attack by the Axis," rather than "if we acquiesce in their defeat."

Disclaiming any intention to send a new "American Expeditionary Force" outside the United States, FDR declared that "the people of Europe who are defending themselves do not ask us to do their fighting." All they seek are "the implements for war." Increasing national defense production and sending it to Britain would "keep war away from our country and our people."126 It was one of the most popular speeches of FDR's Presidency: roughly 80 percent of the public agreed. It was one of the most popular speeches of FDR's Presidency: roughly 80 percent of the public agreed.127 Congress waited until March 1941 to give its approval to Lend-Lease, Congress waited until March 1941 to give its approval to Lend-Lease,128 but FDR decided to move forward during that critical time anyway. He authorized British purchase of 23,000 airplanes in November 1940, and rifles and ammunition in February 1941. He ordered the U.S. military to purchase munitions factories but diverted the production to Britain. but FDR decided to move forward during that critical time anyway. He authorized British purchase of 23,000 airplanes in November 1940, and rifles and ammunition in February 1941. He ordered the U.S. military to purchase munitions factories but diverted the production to Britain.129 In spring 1941, FDR turned to the protection of the supplies that would begin to flow across the Atlantic, and took unilateral action that p