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FRANKLIN D. ROOSEVELT,
COMMANDER IN CHIEF
Elizabeth L. Hillman*
I. LEGACIES
Franklin Delano Roosevelt, the 32nd president of the United
States, stands alone in American history, perhaps in world history. A
recent, only somewhat hyperbolic book terms FDR “the most
consequential man of the 20th century” and quotes the novelist Saul
Bellow: “It is not too much to say that another America was formed
under his influence.”1 Consistently named as the one of the greatest of
presidents,2 FDR served an unmatched four terms in office, led the
nation through dire depression and world war,3 and founded the modern
administrative state as he remade the federal government4—all after
surviving a near-fatal illness that left him unable to stand or walk except
with great difficulty and the help of steel leg braces.5 Possessed of a
remarkable sangfroid and a famously “first-class temperament,”
Roosevelt filled the White House as perhaps no other could; it was “for
him almost a family seat.”6 He was exuberant, charming, and
* Professor of Law, Rutgers University School of Law, Camden. I wish to thank the
engaged participants in the Cardozo Law School “The Domestic Commander-in-Chief”
Symposium, the editors of the Cardozo Law Review, and Richard H. Kohn and Louis Fisher, for
their astute suggestions and encouragement.
1 JONATHAN ALTER, THE DEFINING MOMENT: FDR’S HUNDRED DAYS AND THE TRIUMPH
OF HOPE xiv, xvi (2006).
2 See, e.g., William Michael Treanor, Fame, the Founding, and the Power to Declare War,
82 CORNELL L. REV. 695, 767 (1997).
3 See, e.g., DAVID M. KENNEDY, FREEDOM FROM FEAR: THE AMERICAN PEOPLE IN
DEPRESSION AND WAR, 1929-1945 (1999).
4 See, e.g., A. J. WANN, THE PRESIDENT AS CHIEF ADMINISTRATOR: A STUDY OF FRANKLIN
D. ROOSEVELT (1968).
5 Medical scholars have studied FDR’s symptoms and concluded that he was probably
misdiagnosed with polio and instead was struck down by Guillain-Barré syndrome. See Armond
S. Goldman et al., What Was the Cause of Franklin Delano Roosevelt’s Paralytic Illness?, 11 J.
MED. BIOGRAPHY 232 (2003); see generally HUGH GREGORY GALLAGHER, FDR’S SPLENDID
DECEPTION: THE MOVING STORY OF ROOSEVELT’S MASSIVE DISABILITY—AND THE INTENSE
EFFORTS TO CONCEAL IT FROM THE PUBLIC (1985) (describing how FDR concealed his
paralysis).
6 RICHARD E. NEUSTADT, PRESIDENTIAL POWER: THE POLITICS OF LEADERSHIP FROM FDR
TO CARTER 162 (1960), quoted in ERIC LARRABEE, COMMANDER IN CHIEF: FRANKLIN DELANO
ROOSEVELT, HIS LIEUTENANTS, AND THEIR WAR 3 (1987). The well-known “first-class
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optimistic, with great intuition, impeccable timing, and broad popular
appeal.7 He personalized the office of the president to both U.S. citizens
and world leaders8 while extending its reach into domestic and foreign
policy;9 for all this, he has been termed “the first modern president.”10
FDR seemed capable of nearly anything and able to be many things at
once. Justice Robert H. Jackson’s memoir casts him as “far-sighted but
nimble in attacking the problems at hand; principled but also flexible in
defining his positions; charismatic and popular but unafraid to pick
fights, take stands, and make enemies.”11 Emma McCloud, an Alabama
sharecropper whose plight was documented by James Agee in Let Us
Now Praise Famous Men, “lauded FDR as ‘the only President I ever
knew that done anything.’”12
Much of what FDR did was possible because of his sweeping
expansion of presidential authority.13 Roosevelt transformed what it
meant to be president—and what the constitutional role of commander
temperament” quotation is taken from a remark uttered by Justice Oliver Wendell Holmes after
FDR attended Holmes’s 92nd birthday party on March 8, 1933, just days after Roosevelt’s first
inaugural. Holmes considered FDR to have “a second-class intellect but a first-class
temperament!” See, e.g., KENNETH S. DAVIS, FDR: THE NEW DEAL YEARS, 1933-1937 54-55
(1986) [hereinafter DAVIS, FDR: THE NEW DEAL YEARS].
7 Many scholars as well as many of Roosevelt’s contemporaries have drawn nuanced
portraits of FDR. Most useful in writing this essay were the multi-volume works of two of
Roosevelt’s most distinguished biographers: JAMES MACGREGOR BURNS, ROOSEVELT: THE
SOLDIER OF FREEDOM (1970) [hereinafter BURNS, SOLDIER OF FREEDOM]; JAMES MACGREGOR
BURNS, ROOSEVELT: THE LION AND THE FOX (1956); DAVIS, FDR: THE NEW DEAL YEARS,
supra note 6; KENNETH S. DAVIS, FDR: THE WAR PRESIDENT, 1940-1943 (2000) [hereinafter
DAVIS, FDR: THE WAR PRESIDENT]. There are, however, many other worthy sources. The study
of Roosevelt commenced immediately upon his death and has scarcely abated since. In the
course of my research, I ran across a claim I was all too happy to believe: that the volume of
scholarship on FDR exceeds even that on Lincoln. See PATRICK J. MANEY, THE ROOSEVELT
PRESENCE: A BIOGRAPHY OF FRANKLIN DELANO ROOSEVELT 225 (1992).
8 See, e.g., HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION: SHARING
POWER AFTER THE IRAN-CONTRA AFFAIR 97 (1990) (FDR “personalized his role in world
leadership through summitry and personalized his role as America’s leader through frequent press
conferences and fireside chats”).
9 See infra Parts II and III.
10 WILLIAM E. LEUCHTENBURG, THE FDR YEARS: ON ROOSEVELT AND HIS LEGACY 1
(1995).
11 John Q. Barrett, Introduction to ROBERT H. JACKSON, THAT MAN: AN INSIDER’S
PORTRAIT OF FRANKLIN D. ROOSEVELT, at xxviii (2003). On Justice Jackson’s notions of
executive authority, see Jack Goldsmith, Justice Jackson’s Unpublished Opinion, in Ex Parte
Quirin, 9 GREEN BAG 2d 223 (2006); Dennis J. Hutchinson, “The Achilles Heel” of the
Constitution: Justice Jackson and the Japanese Exclusion Cases, 2002 SUP. CT. REV. 455.
12 WILLIAM E. LEUCHTENBURG, THE WHITE HOUSE LOOKS SOUTH: FRANKLIN D.
ROOSEVELT, HARRY S. TRUMAN, LYNDON B. JOHNSON 45 (2005).
13 “During his time in office, President Franklin Roosevelt greatly expanded the use of
executive orders, partly in response to the growth of government and partly in response to the
demands placed on him as Commander in Chief during World War II.” Todd F. Gaziano, The
Use and Abuse of Executive Orders and Other Presidential Directives, 5 TEX. REV. L. & POL.
267, 283 (2001); see also Terry M. Moe & William G. Howell, The Presidential Power of
Unilateral Action, 15 J.L. ECON. & ORG. 132, 155 (1999).
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in chief of the Army and the Navy entailed. Roosevelt’s momentous
years in the White House must be reckoned with in any assessment of
the authority granted by the Commander in Chief Clause of the
Constitution. FDR’s exercise of presidential war powers was nothing
short of “breath-taking.”14 And, although his court-packing plan of
1937 has long been considered perhaps his most egregious political
misstep,15 FDR was the president to whom the Supreme Court deferred
in 1936 in its most expansive statement of executive authority.16
It is no easy task to assess such a magisterial legacy. In order to
come to grips with FDR as commander in chief, this essay begins by
sketching the national emergencies to which FDR responded. It next
traces how the presidential role of commander in chief under President
Roosevelt came to justify an entire catalog of executive actions, then
concludes with some observations on what the American experience in
the 1930s and 1940s teaches us about the limits of presidential power
created by the Constitution’s Commander in Chief Clause.
II. CRISES
When Edward Corwin, eminent scholar of politics and
jurisprudence, assessed the impact of Roosevelt’s use of war powers on
constitutional doctrine, he wrote: “In the Second World War the
emergency preceded the war and continued beyond it.”17 These
emergencies threatened to undo not only the president but the United
States itself. Roosevelt was well aware of the gravity of the situation,
even before he took office. During the interminable weeks and months
that passed between his election in November 1932 and his inauguration
in March 1933, an observer remarked that if Roosevelt failed, he would
be considered one of the greatest failures among U.S. presidents. FDR
responded, “If I fail, I will be the last one.”18
14
15
CLINTON ROSSITER, THE SUPREME COURT AND THE COMMANDER IN CHIEF 5 (1951).
See, e.g., WILLIAM E. LEUCHTENBURG, THE SUPREME COURT REBORN: THE
CONSTITUTIONAL REVOLUTION IN THE AGE OF ROOSEVELT (1995); BARRY CUSHMAN,
RETHINKING THE NEW DEAL COURT: THE STRUCTURE OF A CONSTITUTIONAL REVOLUTION
(1998).
16 See United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) (upholding
President Roosevelt’s authority to impose an arms embargo in South America). This decision has
been much criticized. See, e.g., LOUIS FISHER, PRESIDENTIAL WAR POWERS 68, 68-73 (2d ed.
2004) (arguing that Curtiss-Wright is “a badly reasoned, badly grounded decision”).
17 EDWARD S. CORWIN, THE PRESIDENT: OFFICE AND POWERS, 1787-1957, 237 (4th ed.
1957). Corwin left Princeton to serve as a legal advisor to FDR in 1935; in 1937, he publicly
supported FDR’s court-packing plan. In 1940, however, he opposed Roosevelt’s unprecedented
campaign for a third term in office.
18 This episode is recounted in many Roosevelt biographies. See, e.g., ALTER, supra note 1,
at 6.
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The crises of FDR’s tenure can be seen as two threats, intertwined
in time and space, one economic, one political and military. To convey
the magnitude of the Great Depression and World War II, this section
describes the state of the United States and the world at two critical
junctures: when FDR first took office in the spring of 1933 and then
again in the “black spring” of 1941.19
What FDR termed “the dark realities of the moment”20 as he took
office on March 4, 1933 were looming financial and economic crises.
Unemployment stood at record levels; a quarter of the nation’s
workers—about 15 million people—were unemployed and perhaps a
third of those still working had only part-time jobs.21 Since 1929, the
gross national product had fallen 50 percent,22 wheat prices and other
agricultural benchmarks were cut in half from already depressed levels,
construction fell nearly 80 percent, and investment dropped by more
than 90 percent.23 Cities were broke, breadlines and soup kitchens were
common, and Americans’ overall health declined. Millions of savings
accounts had been wiped out when more than 5,000 banks failed; in
March 1933, the banks were closed by government action in thirty-two
states and were virtually closed in six others, and the New York Stock
Exchange and the Chicago Board of Trade had both shut down.24
Violence and disorder were growing threats to government. In
Washington, D.C., “[f]or the first time since the Civil War, armed men
patrolled the entrances to federal buildings, while machine gunners
perched on the rooftops.”25 Signs were no better outside the borders of
the Untied States; the Reichstag handed control of the German
government to Hitler on March 23 and Japan announced its intention to
quit the League of Nations.26
Eight years later, in the spring of 1941, depression lingered but war
was no longer a metaphor.27 Hitler’s star was on the rise and Nazi
Germany’s armies were on the march across the Balkans and North
Africa; the British had lost control of the Mediterranean Sea and were
threatened with starvation at home by the effective raids of U-boat
“wolf packs” and the relentless bombing of the Luftwaffe.28 Churchill
19
20
21
22
23
24
DAVIS, FDR: THE WAR PRESIDENT, supra note 7, at 147.
PRESIDENT FRANKLIN D. ROOSEVELT, FIRST INAUGURAL ADDRESS (Mar. 4, 1933).
See, e.g., KENNEDY, supra note 3, at 87, 163; ALTER, supra note 1, at 2.
See, e.g., KENNEDY, supra note 3, at 163; ALTER, supra note 1, at 2.
See, e.g., KENNEDY, supra note 3, at 162-63; ALTER, supra note 1, at 2.
See, e.g., KENNEDY, supra note 3, at 132-33; ALTER, supra note 1, at 2; ALLAN M.
WINKLER, FRANKLIN D. ROOSEVELT AND THE MAKING OF MODERN AMERICA 68 (2006).
25 ALTER, supra note 1, at 3; see also KENNEDY, supra note 3, at 131-33.
26 See, e.g., KENNEDY, supra note 3, at 158.
27 See, e.g., DAVIS, FDR: THE WAR PRESIDENT, supra note 7, at 143-44 (explaining the
progress of war preparations long before the U.S. declared war).
28 See, e.g., id. at 148-49, 147-212.
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“begged Roosevelt for an American declaration of war”29 as “the Nazi
juggernaut appeared unstoppable.”30 FDR, however, faced staunch
opposition from isolationists, along with a growing threat in the Pacific
from Japanese aggression, which the Americans understood all too well
after breaking the encryption used for Japanese diplomatic codes.31
Kenneth S. Davis wrote of this period:
In retrospect, no season in all the years of stupendous global conflict,
not even the furiously flaming spring of 1940, would appear to
British and American leaders more fraught with fatal danger to
freedom’s cause, more crowded with insoluble anxiety-breeding
problems, and less lighted by a belief in ultimate victory, than the
black spring of 1941.32
III. COMMANDER IN CHIEF
While the topic of presidential powers has not inspired prose as
colorful as that of FDR’s biographers, it has captured the attention of
many scholars since World War II.33 From their work we know that the
starting point for analysis of the president’s authority as commander in
chief is the Constitution, but that the sort of power FDR wielded was
not envisioned by the framers. Article 2, § 2 reads, in part: “The
President shall be Commander in Chief of the Army and Navy of the
United States, and of the Militia of the several States, when called into
the actual service of the United States.”34 Before reading this clause as
a broad grant of authority (something that seems natural in the early
21st century), it is important to note that Alexander Hamilton
“depreciated” the Commander in Chief Clause, in the words of Louis
Henkin, when he elaborated on its meaning in The Federalist Papers:
[The role of commander in chief] would amount to nothing more
than the supreme command and direction of the military and naval
forces, as first General and admiral of the Confederacy; while that of
the British king extends to the declaring of war and to the raising
and regulating of fleets and armies—all which, by the Constitution
29
30
31
32
33
KENNEDY, supra note 3, at 493.
Id. at 495.
Id. at 507-11.
DAVIS, FDR: THE WAR PRESIDENT, supra note 7, at 147.
The scholarly literature on this topic is expansive; modern bookends might be considered
ARTHUR M. SCHLESINGER, JR., THE IMPERIAL PRESIDENCY (1973) (documenting “presidential
usurpation” of war-making powers from Congress) and Neil Kinkopf, The Statutory Commander
in Chief, 81 IND. L.J. 1169 (2005) (arguing that statutory interpretation is critical to the analysis
of Constitutional authority). For an overview, see FISHER, supra note 16, at 12-14; see infra for
other citations to essential works.
34 U.S. CONST. art. II, § 2, cl. 1.
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under consideration, would appertain to the legislature.35
Hamilton, like the Constitution itself, envisioned the president as a
military commander, rather than as a policy- or law-maker, under the
Commander in Chief Clause. The clause does not give a president
license to do anything, of course; the rest of the Constitution still applies
and limits executive power.36
But exceeding those limits, at least in times of emergency, has
proven difficult.
First Abraham Lincoln, and then Roosevelt,
“transformed” the commander in chief power “from a simple power of
military command to a vast reservoir of indeterminate powers in time of
emergency.”37 Roosevelt capitalized on the vagueness of the clause to
justify a broad range of executive actions, many unrelated to the
command of military forces.38 Dean Harold Hongju Koh considers
FDR’s use of the commander in chief authority as “a change not simply
of degree, but kind,” arguing that “Roosevelt was transforming the
domestic structure of the presidency.”39
In FDR’s first inaugural address, delivered on Saturday, March 4,
1933, just weeks after he survived an assassination attempt in Florida,40
he struck an optimistic note at the same time that he claimed great
authority: “I shall ask the Congress for the one remaining instrument to
meet the crisis—broad Executive power to wage a war against the
emergency, as great as the power that would be given to me if we were
in fact invaded by a foreign foe.”41 In “the electrifying First Hundred
Days,”42 from March to June 1933, FDR established himself as a
powerful chief executive by addressing the banking crisis, cutting
government benefits to veterans and federal employees, taking the
United States off the gold standard, and herding legislation on
unemployment, agriculture, public works, and even a tax on alcohol
35 THE FEDERALIST NO. 69 (Alexander Hamilton); LOUIS HENKIN, FOREIGN AFFAIRS AND
THE UNITED STATES CONSTITUTION 45 (2d ed. 1996); see also CORWIN, supra note 17, at 228.
36 See, e.g., Erwin Chemerinsky, The Assault on the Constitution: Executive Power and the
War on Terrorism, 40 U.C. DAVIS L. REV. 1, 13 (2006) (“The President, as Commander in Chief,
has no power to violate the Bill of Rights.”). The Supreme Court has stepped in on occasion to
check executive action, most notably in United States v. Nixon and Youngstown Sheet & Tube Co.
v. Sawyer. See United States v. Nixon, 418 U.S. 683 (1974) (rejecting President Nixon’s
invocation of executive privilege to keep Watergate tapes secret); Youngstown Sheet & Tube Co.
v. Sawyer, 343 U.S. 579 (1952) (rejecting President Truman’s seizure of steel mills during
Korean War).
37 CORWIN, supra note 17, at 261.
38 CORWIN, supra note 17, at 227-62.
39 KOH, supra note 8, at 97. FDR’s actions continue to be cited today to justify expansive
executive authority. See JOHN YOO, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND
FOREIGN AFFAIRS AFTER 9/11, at 301 (2005) (“Globalization has launched a similar
transformation, with the same change of constitutional confrontation and breakdown, as the one
that occurred almost a century ago.”).
40 See, e.g., KENNEDY, supra note 3, at 116.
41 See, e.g., WINKLER, supra note 24, at 70.
42 LEUCHTENBURG, supra note 12, at 42.
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(since he had also hastened the end of Prohibition43) through
Congress.44 These reforms were justified in large part by powers he
claimed as commander in chief as he battled the Great Depression.45
FDR repeatedly used the metaphors of war to describe the fight against
poverty and depression, evoking an image “of a brave, resourceful
commander in chief who mobilized armies.”46
Soon enough, of course, Roosevelt found himself president of a
nation rapidly approaching real war. His White House was not shy
about using the Commander in Chief Clause to justify executive action.
Long before asking Congress to declare war, FDR committed U.S.
resources to help the British in violation of the official U.S. stance of
neutrality. In the summer of 1940, he ordered the exchange of fifty
World War I-era destroyers for the right to build eight military and
naval bases on British possessions in the Atlantic,47 an action that paved
the way for the Lend-Lease Act, passed by Congress a full nine months
before it declared war.48 FDR’s advisors realized the destroyers-forbases deal was of doubtful legitimacy.49 As Dean Acheson’s biographer
explains: “No longer concerned about FDR’s aptitude for playing fast
and loose with the law, [Acheson, then a senior official in the State
department] . . . threw himself into finding a way to bypass Congress in
the destroyer-bases deal.”50 The Lend-Lease Act, which authorized the
president to sell virtually anything to any nation whose defense the
president deemed “vital to the national defense of the United States,”
reflected Congressional acquiescence to an exalted executive.51 Corwin
later termed Lend-Lease “a qualified declaration of war” and the most
“sweeping delegation of legislative power” ever made to a president.52
FDR deftly used the pedestrian metaphor of loaning a garden hose to a
neighbor in case of fire to build public support for this dramatic, prewar measure.53 The Lend-Lease Act led to further executive action, as
U.S. convoys and U.S. troops in Greenland and Iceland were needed to
43 See DAVIS, FDR: THE NEW DEAL YEARS, supra note 6, at 63 (reporting that FDR
remarked, “I think now would be a good time for beer”).
44 See, e.g., KENNEDY, supra note 3, at 139-40.
45 See, e.g., Roger I. Roots, Government by Permanent Emergency: The Forgotten History of
the New Deal Constitution, 33 SUFFOLK U. L. REV. 259 (2000).
46 DAVIS, FDR: THE NEW DEAL YEARS, supra note 6, at 35.
47 FDR relied on then-Attorney General Jackson’s opinion. See 39 Op. Att’y Gen. 484
(1940). But see Edwin Borchard, The Attorney General’s Opinion on the Exchange of Destroyers
for Naval Bases, 34 AM. J. INT’L L. 690 (1940); FISHER, supra note 16, at 77. See also JACKSON,
supra note 11, at 84-93.
48 See, e.g., FISHER, supra note 16, at 78; WINKLER, supra note 24, at 150-55.
49 See, e.g., FISHER, supra note 16, at 75-77; KOH, supra note 8, at 96.
50 ROBERT L. BEISNER, DEAN ACHESON: A LIFE IN THE COLD WAR 14 (2006).
51 CORWIN, supra note 17, at 239.
52 Id. at 237.
53 See, e.g., KENNEDY, supra note 3, at 468.
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protect American trade with the British.54 Nor was the Pacific left
untouched; FDR’s increasing sanctions on Japan, which froze Japanese
assets in the U.S. and extended trade embargoes, including prohibiting
the shipment of oil, were implemented many months before Pearl
Harbor.55
FDR’s pre-war and then wartime actions on the home front
involved more than setting the parameters of foreign trade. He relied on
the commander in chief power to create powerful new agencies like the
Office of War Mobilization, the Office of Price Administration, the War
Manpower Commission, and, most infamously, the War Relocation
Authority, which presided over interment of Japanese Americans.56
Relying largely on his authority as commander in chief, FDR redirected
civilian manufacturing and workers themselves toward defense
necessities,57 used his impoundment authority,58 settled labor disputes,59
and seized dozens of plants and facilities, some for years rather than
months.60
Not all of FDR’s home front actions as commander in chief were
explicitly non-military, of course.
The internment of Japanese
Americans, permitted by the Supreme Court and since denounced by
not only its victims but legal scholars and the U.S. government itself,
was purportedly in response to a military assessment. Likewise, the
long-term imposition of martial law in Hawaii61 and the trials of Nazi
saboteurs before a secret, ad hoc military commission were deemed
military necessities.62 The latter is especially notable because FDR’s
54 See, e.g., WINKLER, supra note 24, at 154-55. See also ARTHUR S. SCHLESINGER, THE
IMPERIAL PRESIDENCY 110-13 (1973).
55 See, e.g., WINKLER, supra note 24, at 156; see also KENNEDY, supra note 3, at 510-11.
56 See, e.g., CORWIN, supra note 17, at 242-50, 243: “[i]n creating such [agencies] it was
generally Mr. Roosevelt’s practice to invoke his powers” as commander in chief. The courts
upheld this practice in Employers Group of Motor Freight Carriers v. Nat’l War Labor Bd., 143
F.2d 145 (D.C. Cir. 1944), cert. denied, 323 U.S. 735 (1944) (upholding FDR’s establishment of
advisory agencies funded through congressional appropriations. See also WINKLER, supra note
24, at 181-89.
57 See, e.g., CORWIN, supra note 17, at 239-47.
58 See, e.g., Cathy S. Neuren, Addressing the Resurgence of Presidential Budgetmaking
Initiative: A Proposal to Reform the Impoundment Control Act of 1974, 63 TEX. L. REV. 693, 696
(1984); see also Louis Fisher, Congressional Budget Reform: The First Two Years, 14 HARV. J.
ON LEGIS. 413 (1977).
59 See, e.g., Michael H. LeRoy, Presidential Regulation of Private Employment:
Constitutionality of Executive Order 12,954 Debarment of Contractors who Hire Permanent
Striker Replacements, 37 B.C. L. REV. 229, 236-37 (1996).
60 See, e.g., CORWIN, supra note 17, at 245-46; DOROTHY SCHAFFTER & DOROTHY M.
MATHEWS, THE POWERS OF THE PRESIDENT AS COMMANDER IN CHIEF OF THE ARMY AND
NAVY OF THE UNITED STATES 9 (1974) (noting that Presidents Roosevelt and Truman seized
private facilities seventy-nine times between 1941 and 1952).
61 See, e.g., CORWIN, supra note 17, at 237, 252-54; Duncan v. Kahanamoku, 327 U.S. 304
(1946); Harry N. Scheiber & Jane L. Scheiber, Bayonets in Paradise: A Half-Century Retrospect
on Martial Law on Hawai’i, 1941-1946, 19 U. HAW. L. REV. 477, 487-520 (1997).
62 See Ex parte Quirin, 317 U.S. 1, 19-22 (1942); see also LOUIS FISHER, NAZI SABOTEURS
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wartime use of this military commission has become a critical precedent
for the revival of military commissions under the current Bush
administration.63
Exerting command and control over military and naval forces was
also a part of FDR’s exercise of his commander in chief powers, and it
was a part of being President that he especially enjoyed.64 “Roosevelt
was the real and not merely a nominal commander-in-chief of the armed
forces,”65 and the White House itself “changed into a military command
post” during the war.66 Robert Jackson wrote that being commander in
chief was FDR’s “constitutional role and it was one that he liked,” often
repeating “that war is too important a matter to be left to the generals.”67
“An activist commander” who loved to “play soldier,”68 Roosevelt often
took refuge during the war in the White House map room, which was
complete with pins, symbols, and models of army, navy, and air force
operations.69 Historian Eric Larrabee points out that FDR made no
fewer than 22 major decisions against the advice (and sometimes over
the protests) of his military advisers, and that he ordered 13 military
interventions on his own initiative.70 FDR, like all presidents, had
constitutional and statutory authority to appoint and to dismiss military
officers.71 His control of military forces, like that over administrative
agencies, was uneven, however. Long fascinated with the sea, FDR was
partial to the Navy, and his years of experience as assistant secretary of
the Navy increased his confidence in naval matters. He was also more
interested in Europe than the Pacific, and ceded crucial decisions
regarding Japan to subordinates.72 His military thinking, like that of his
generals and admirals, evolved during the course of the war. For
instance, at first he resisted Churchill’s arguments in support of
bombing civilian targets, but later in the war permitted extensive
ON TRIAL: A MILITARY TRIBUNAL & AMERICAN LAW (2003); Louis Fisher, Military
Commissions: Problems of Authority and Practice, 24 B.U. INT’L L.J. 15, 34-46 (2006).
63 See Julian Ku & John Yoo, Hamdan v. Rumsfeld: The Functional Case for Foreign Affairs
Deference to the Executive Branch, 23 CONST. COMMENT. 179, 208-11 (2006); Carl Tobias,
Punishment and the War on Terrorism, 6 U. PA. J. CONST. L. 1116, 119-20 (2004); Alberto R.
Gonzales, Editorial, Martial Justice, Full and Fair, N.Y. TIMES, Nov. 30, 2001, at A27; Tim
Golden, After Terror, A Secret Rewriting of Military Law, N.Y. TIMES, Oct. 24, 2004, at A1.
64 WINKLER, supra note 24, at 158.
65 William R. Emerson, F.D.R. (1941-45), in THE ULTIMATE DECISION: THE PRESIDENT AS
COMMANDER IN CHIEF 149 (Ernest R. May ed., 1960).
66 BURNS, SOLDIER OF FREEDOM, supra note 7, at 198.
67 JACKSON, supra note 11, at 75, 81.
68 LARRABEE, supra note 6, at 2, 13.
69 Id. at 22.
70 Id. at 15.
71 See, e.g., 10 U.S.C.A. § 1161(a)(3) (2006); McElrath v. United States, 102 U.S. 426
(1880); see generally Commander Roger D. Scott, Kimmel, Short, McVay: Case Studies in
Executive Authority, Law and the Individual Rights of Military Commanders, 156 MIL. L. REV 52
(1998).
72 See KENNEDY, supra note 3, at 507.
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bombing of civilian targets, especially in Japan.73
IV. LIMITS
In crises, U.S. presidents have famously seized great legal and
political authority. Consider, for example, Lincoln, who called forth the
state militia, suspended the writ of habeas corpus, and blockaded the
Confederate states—all while Congress was in recess in April 1861,74 or
Wilson, whose decisions directly pushed the United States from
neutrality to war in 1917.75 Wartime and the threats it magnified often
brought repression and persecution as well; consider the persecution of
Loyalists during the War for Independence or of suspected communists
during the early years of the Cold War.76
Yet FDR did not create a “constitutional dictatorship,” a role
pressed upon him as early as 1933, when the nation’s economy was in
free fall and its capitol under armed guard.77 On the eve of his first
inaugural, Eleanor Roosevelt suggested that the nation might need a
“benevolent dictator;” William Randolph Hearst personally oversaw the
production of a popular film in which a fictional President saved the
nation by dissolving Congress, creating an Army of the unemployed,
and lining up enemies before firing squads.78 The national mood
included “a broad streak of messianic authoritarianism”79 that would
have likely embraced bolder measures than those FDR settled on.80
And when it came to military power, FDR was not bashful about the
commander in chief mantle. In press conferences, he kidded reporters
about simply being “Commander in Chief,” not merely “Commander in
Chief of the Army and the Navy,” which is what they all knew the
Constitution specified.81 He asked his Secretary of State, Cordell Hull,
73 See, e.g., JAMES CARROLL, HOUSE OF WAR: THE PENTAGON AND THE DISASTROUS RISE
OF AMERICAN POWER 13, 89 (2006); see generally MICHAEL S. SHERRY, THE RISE OF
AMERICAN AIR POWER: THE CREATION OF ARMAGEDDON (1989).
74 See FISHER, supra note 16, at 47.
75 See id. at 66.
76 See, e.g., GEOFFREY R. STONE, PERILOUS TIMES: FREE SPEECH IN WARTIME FROM THE
SEDITION ACT OF 1798 TO THE WAR ON TERRORISM (2004).
77 ALTER, supra note 1, at 7.
78 Id. at 6.
79 DAVIS, FDR: THE NEW DEAL YEARS, supra note 6, at 35.
80 KENNEDY, supra note 3, at 111.
81 See, e.g., LARRABEE, supra note 6, at 13; BURNS, SOLDIER OF FREEDOM, supra note 7, at
493 (recounting another incident of FDR rejecting any qualifications on the title of Commander
in Chief); Franklin D. Roosevelt, Excerpts from Press Conference, Jul. 21, 1942, available at
http://www.presidency.ucsb.edu/ws/index.php?pid=16284 (describing Admiral Leahy’s duties as
chief of staff to the Commander in Chief). An irritated Garry Wills pointed out in a recent
column that the now-accepted use of the appellation “Commander in Chief” as a synonym for
“President” is less rooted in Constitutional authority than in performances like those of Ronald
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in January 1942 to toast him at a dinner not as president, but as
commander in chief.82 Why, then, didn’t FDR’s exhilarating Hundred
Days, his unprecedented four terms, and the dire threat of world war
transform the presidency even further?
The answer to this question in hard to locate, even in the volumes
written about the Roosevelt years. Notwithstanding his legendary
charm and fondness for conversation, Roosevelt was notoriously
inscrutable. Depicted by cartoonists as a sphinx, FDR was a cipher to
even his closest advisors.83 But some combination of factors—perhaps
political savvy, philosophy (which he lightheartedly described as
“Christian and . . . Democrat”84), or personality—checked the power
that he might have assumed during the emergencies of the 1930s and
1940s.
FDR hoped that the constitutional order would return from its
temporary deformation after the end of the emergencies of his time, but
neither law nor executive authority has proved so elastic. Today, from
the vantage point of a spring not quite like that of 1933 or 1941, but
with its own political threats, economic dangers, and legal uncertainties,
the lesson of the FDR years may be that the limits of presidential power
as commander in chief during a time of war, declared or not, will come
not from the Constitution, or from law more generally, but from
politics, pragmatism, and the individual restraint—the character?—of
our president.
Reagan beginning the tradition of returning soldiers’ salutes and George W. Bush strutting on the
deck of an aircraft carrier clad in a bomber jacket. Garry Wills, Op-Ed., At Ease, Mr. President,
N.Y. TIMES, Jan. 27, 2007, at A17 (“The wartime discipline imposed in 1941 has never been
lifted, and ‘the duration’ has become the norm.”).
82 LARRABEE, supra note 6, at 13. Officially, however, FDR usually attached “of the Army
and the Navy” when he referred to himself as Commander in Chief. See, e.g., Franklin D.
Roosevelt, Address to Congress Requesting a Declaration of War with Japan (Dec. 8, 1941),
available at http://www.presidency.ucsb.edu/ws/index.php?pid=16053 (Roosevelt’s address after
Pearl Harbor); Exec. Order No. 9040, 7 Fed. Reg. 527 (Jan. 24, 1942), available at
http://www.presidency.ucsb.edu/ws/print.php?pid=60940 (Roosevelt’s order extending the
authority of the War Production Board); Proclamation No. 2561 (July 2, 1942), available at
http://www.presidency.ucsb.edu/ws/index.php?pid=16281 (Proclamation Denying Certain
Enemies Access to the Courts, Roosevelt’s order establishing a military commission to try the
Nazi saboteurs and denying access to civilian courts); Franklin D. Roosevelt, Fireside Chat on the
Coal Crisis (May 2, 1943), available at http://www.fdrlibrary.marist.edu/050243.html
(Roosevelt’s fireside chat about labor needs and coal mining).
83 See, e.g., DAVIS, FDR: THE WAR PRESIDENT, supra note 6, at 7-11; ROBERT H. FERRELL,
PRESIDENTIAL LEADERSHIP: FROM WOODROW WILSON TO HARRY S. TRUMAN 4 (2006);
MANEY, supra note 7, at 228.
84 See, e.g., ARTHUR M. SCHLESINGER, JR., THE COMING OF THE NEW DEAL, 1933-1935, at
585 (2003).