Crisis and Command: A History of Executive Power from George Washington to George W. Bush (41 page)

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.
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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 constitutional 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 Japan. 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.
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Debate has raged for decades over whether the Japanese 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 Japanese would attack Pearl Harbor.
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Recent scholarly work suggests that FDR managed events to maneuver the Japanese into a corner, with a strong possibility that the Japanese would attack American interests somewhere in the Pacific, most likely the Philippines. Roosevelt's imposition of an arms, steel, and oil embargo against the Japanese Empire was designed to force Tokyo to either withdraw from China or attack American, British, and Dutch possessions in Asia for natural resources.
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FDR pressed Japan in order to bring the United States to bear against the greater threat of Germany.
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FDR could not have walked the United States to the brink of war without a broad understanding of the President's constitutional powers and the willingness to exercise them.

Roosevelt had laid claim to sweeping executive authority in foreign affairs even before war with Germany and Japan looked certain. One assist came from the hands of an unlikely source: Justice Sutherland. While Sutherland believed the New Deal state unconstitutionally trampled on the natural rights of individuals, as Hadley Arkes has argued, he still strongly supported presidential power in foreign affairs.
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This became clear in the case
United States v. Curtiss-Wright Export Corporation
.
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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 passed 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.
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Taking its case all the way to the Supreme Court, the company argued that the law had delegated unconstitutional 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 constitutional standards that ruled the government's actions domestically did not apply in the same way to foreign affairs. The Constitution'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 Constitution, would have vested in the federal government as necessary concomitants of nationality."
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In words that could have been cribbed from Abraham Lincoln, the Court declared that the "Union existed before the Constitution," 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
, 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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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"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.
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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.
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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.
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It gave FDR the authority to decide when to terminate the embargo, but it left him little choice as to when to begin one.