Authors: Ira Katznelson
III.
E
VEN BEFORE
Pearl Harbor, President Roosevelt had declared states of emergency.
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These edicts were controversial, because there existed no clear constitutional or statutory authority for such far-reaching expansions of executive power. Dating from the prewar period of 1941 into the first part of the war, these presidential orders and proclamations complemented action by Congress to change the Neutrality Acts, build military preparedness, and create a peacetime draft. These executive “forms of action taken by President Roosevelt under emergency conditions in the absence of definite statutory or constitutional authority,” an approving 1949 study concluded, were premised on the idea that “when the need became apparent, legality, though considered, was secondary and subordinate to crisis demands.”
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To be sure, Roosevelt did draw on a legacy of presidential practice and Supreme Court endorsement, or at least on a particular reading of this legal patrimony, dating from President Lincoln’s invocation of presidential war power as singular and unified. Following World War I, Chief Justice Edward Douglass White declared, in
Northern Pacific Railway v. North Dakota
, in 1919, that “the complete and undivided character of the war power” is “indisputable.”
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Fifteen years later, the Court considered whether emergencies authorized constitutional exceptions in
Home Building and Loan Association vs. Blaisdell.
Writing for the majority, Chief Justice Charles Evans Hughes had determined that “emergency does not create power,” nor does it “increase granted power or diminish restrictions imposed upon power granted or reserved” by the Constitution.
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FDR’s actions thus depended on interpreting the Constitution as authorizing presidents to take action that was implied but not specifically granted. This “inherent-power theory,” the constitutional scholar Edward Corwin wrote just after World War II, “logically guarantees the
constitutional adequacy of the war power by equating it with the full actual power of the nation in waging war
. It makes the full power of the nation constitutionally available.”
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FDR issued a military order on July 5, 1939, that removed the secretaries of war and the navy from the military chain of authority to his own supervision as commander in chief.
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A week after the German invasion of Poland, his Proclamation 2352 announced, on September 8, what it called a limited national emergency, giving the president the powers he needed “for the proper obserFvance, safeguarding, and enforcing of the neutrality of the United States and of strengthening our national defense within the limits of peacetime authorizations.”
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The concept of a limited emergency had never been used before.
On May 27, 1941, seven months before the conflagration in Hawaii, FDR issued Proclamation 2487, which affirmed the existence of an unlimited national emergency, thus placing the country on a war footing for the purposes he alone announced. “The war is approaching the brink of the Western Hemisphere itself,” he informed the American people in that evening’s radio address. He explained that he would act to keep sea-lanes open, prepare to repel potential German attacks, and “give every possible assistance to Britain and to all who, with Britain, are resisting Hitlerism or its equivalent with force of arms” in circumstances marked by Nazism’s “military possession of the greater part of Europe” and much of North Africa, by an imminent threat to Egypt and the wider Middle East, and by Germany’s growing capacity to attack American shipping in the Atlantic.
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Critics who disagreed argued that the president was seizing unlawful authority by way of on an uncommonly broad interpretation of his constitutional authority. During the war, such doubts largely remained unspoken because they seemed partisan, even illegitimate. Moreover, with a state of war declared, it was widely understood, as the
New York Times
put it on December 9, 1941, that a situation had come to exist that “lifts the limit from Presidential powers.”
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To be sure, Roosevelt continued to ask Congress for legislation he thought necessary. But he also made clear that when he believed the crisis demanded action, he would give the House and Senate no choice, asserting a capacity to override or circumvent congressional power.
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His fireside chat of September 7, 1942, “the high point in F.D.R.’s
explicit
claims for Presidential prerogative,” and “the most exorbitant claim for Presidential power ever made by a President,”
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called for the repeal of that part of the Price Control Act constraining regulatory action until farm prices had risen to a designated level. “I have told the Congress that inaction on their part” by the end of the month, he informed his listeners, “will leave me with an inescapable responsibility to the people of this country to see to it that the war effort is no longer imperiled by the threat of economic chaos,” adding that “in the event that the Congress should fail to act, and act adequately, I shall accept the responsibility, and I will act.”
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Senator Robert Taft, the Republican leader, strongly objected, calling instead for more ordinary lawmaking. Warning about “a complete one-man dictatorship” and the prospect that “Congress would become” a shell of a legislative body, he argued that the president’s assertion of a right to bypass Congress implied a doctrine “so revolutionary and so dangerous to the country” that disobedience should be considered: “If these powers are assumed without legislation, I should not hesitate to advise any man that his patriotic duty is to refuse obedience of any order issued by them—just as I should refuse to leave my duties here in Washington if the President attempted to suspend congress for the period of the war.”
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After the war, in 1946, Corwin observed that, in this instance, FDR had gone far beyond the assertions of any other in professing powers to disregard a manifestly lawful provision that had been passed by Congress and signed by him into law. Noting Roosevelt had declared that, after the war, these emergency powers would “automatically revert to the people,” Corwin wryly noted “the implication . . . that the President owed the transcendent powers he was claiming to some peculiar relationship between himself and the people—a doctrine with a strong family resemblance to the Leadership principle against which the war was supposedly being fought.”
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What is clear is that Roosevelt’s assertions of entitlement extended well beyond those claimed in wars by Abraham Lincoln or Woodrow Wilson. But also striking is the acquiescence of the legislature, which was not always the case during the Civil War. Roosevelt’s wartime powers were not simply proclaimed; many were explicitly delegated by Congress. The first such instance came a week after Pearl Harbor, when Congress passed the sweeping War Powers Act by voice vote, after only two hours of debate in each chamber. In addition to expanding the president’s economic powers, and reorganizing governmental functions, the law authorized the president to order the surveillance and censorship of mail, telegraph cable communications, and radio broadcasts “when deemed necessary to the public safety.”
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Active planning for wartime censorship had preceded the war. In early 1941, President Roosevelt had reviewed a plan devised by the Joint Army and Navy Board, the precursor to the Joint Chiefs of Staff, to put a navy officer in charge of censoring cables and radio broadcasts and an army officer to direct censorship of wire communications and the mail. He approved the plan on June 4, while asking the FBI to undertake a full review. As it turned out, the Bureau issued detailed recommendations on December 7, just as Pearl Harbor was coming under attack. Utilizing authority granted by the War Powers Act, Roosevelt issued an executive order on the nineteenth to establish the Office of Censorship, stating that “the Director of Censorship shall cause to be censored, in his absolute discretion, communications by mail, cable, radio, or other means of transmission passing between the United States and any foreign country.” On January 27, 1942, the president wrote to the director of censorship, Byron Price, asking him “to coordinate the efforts of the domestic press and radio in voluntarily withholding from publication military and other information which should not be released in the interest of the effective prosecution of the war.” Quickly, the Army, Navy, and Maritime Commission developed codes of conduct to preserve war security and to deal with such matters as how, if at all, to report on German submarine successes in sinking ships in the Atlantic or the shelling by a Japanese submarine of the southern coast of California.
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A tandem effort to distribute materials to rally the public was developed during the winter and spring of 1942. On March 7, the director of the Bureau of the Budget, Harold Smith, urged the president to create a central agency “to stimulate citizen understanding of the war effort.” He argued that it was “imperative that some single agency be responsible for policy coordination and for providing centralized control over Government use of such media as the radio, motion pictures, and posters.”
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Following this advice, Roosevelt issued Executive Order 9182 on June 13, which established the Office of War Information (OWI).
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The creation of this and a host of other wartime agencies by the president—including the Board of Economic Warfare (BEW), the Office of Civilian Defense (OCD), and the Office of Defense Transportation (ODT)—sidestepped the Constitution’s provision that unless Congress provided otherwise, all civil offices except those of the president and vice president “shall be established by law.”
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This, Congress did not do, but it did pass the remarkably expansive Second War Powers Act on March 27, 1942. Title XIV authorized the executive branch to carry out “special investigations and reports of census or statistical matters as may be needed in connection with the conduct of the war” and repealed the confidential status of census data, “notwithstanding any other provision in law.”
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These stipulations concerning “the utilization of vital war information” were adopted to underpin the policy of Japanese internment that had been announced on February 19. Arguing that “the successful prosecution of the war requires every possible protection against espionage and sabotage,” Executive Order 9066 established military areas in Arizona, California, Oregon, and Washington from which every person with Japanese ancestry—112,000 in all, 79,000 of whom were citizens—was purged, notwithstanding the absence of treason or subversion.
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The Japanese Exclusion League of California and the Native Sons of the Golden West, organizations long preoccupied with Asian immigrants, had already led a vigorous nativist campaign prior to Pearl Harbor. Publicized by the Hearst newspaper chain, the drive to exclude this population was fueled by the Committee for the Investigation of Un-American Activities.
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During the summer of 1941, Chairman Dies declared an intention to convene hearings to reveal subversion by Japanese living in California. He particularly targeted fishermen, whom he charged with arming their boats after meeting members of Japan’s navy. Hoover and the FBI were utterly unconvinced.
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Once the war began, Dies alleged in demagogic fashion that some fifteen thousand Japanese were spies who should have been apprehended well before the war.
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Leading politicians, including California’s full congressional delegation and Earl Warren, the state’s Republican attorney general and future chief justice of the Supreme Court, as well as members of the West Coast Army Command and prestigious journalists, including Walter Lippmann, also campaigned for removal.
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Like other residents, Japanese in Hawaii were subjected to martial law, under whose terms jury trials, habeas corpus, and other constitutional protections were suspended from December 7, 1941, until October 1944.
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On the mainland, they experienced mass confinement after they were removed from an area described by Lt. Gen. J. L. DeWitt, head of the Western Defense Command, as “particularly subject to attack, to attempted invasion, to espionage and acts of sabotage.”
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Placed under a curfew from 8:00
P.M.
to 6:00
A.M.,
then expelled from their homes, they were first moved, starting on March 23, 1942, to overcrowded and rudimentary temporary centers located at racetracks and fairgrounds whose functions had been suspended during the war. Sanitation was poor, privacy minimal. Books and articles written in Japanese were banned. Transfers followed in antiquated and packed passenger trains to ten austere and isolated “relocation centers” built hastily in remote and inhospitable locations in the interior of the country. Here, too, facilities were rudimentary and privacy hard to secure. Food was modest, medical care uneven. Work was made available at wages below those of the lowest-paid army private. Though President Roosevelt twice referred to “concentration camps,” the term was banned by the War Relocation Authority (WRA), the responsible agency first led by Milton Eisenhower, Dwight Eisenhower’s brother, who later became president of Kansas State University, Pennsylvania State University, and Johns Hopkins University, and, still later, a candidate for vice president in Texas in 1980 on the third-party ticket led by Congressman John Anderson of Illinois.
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As subjects of an extraconstitutional “naked dictatorship,”
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the internees were put through an interrogation process to determine their loyalty. All persons older than seventeen were asked whether they would “swear unqualified allegiance to the United States of America and faithfully defend the United States from any or all attack by foreign and domestic forces and forswear any form of allegiance or obedience to the Japanese emperor.” Those deemed disloyal, less than 15 percent, were physically separated from the majority in what the
Washington Post
described in a headline as a J
AP
S
EGREGATION
P
LAN
.
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