“Like a Loaded Weapon”: Presidential Emergency Power in Time

In his classic and still disturbing study of constitutional dictatorship (oxymoron and all), Rossiter argued that in times of dire crisis “a democratic, constitutional government must be temporarily altered to whatever degree is necessary to overcome the peril … that is, government will have more power and the people fewer rights.”Footnote ²⁵ More specifically, when these perils include exceptional official and popular perceptions of an urgent threat to the nation's safety from dangerous enemies, constitutional dictatorship emerges with “the inflation of executive power through delegation and initiative to permit arbitrary action of executive, legislative, or judicial character.”Footnote ²⁶ In this formulation, the threats (real and imagined) associated with the Civil War, World War I, World War II, and the global “War on Terror” provided special warrants for a handful of presidents to exercise formidable emergency powers via legislative delegation or successful assertions of prerogative. That is, the discretionary powers of presidents charged with guarding national security are at their zenith during these extraordinary crises, as are the dangers these emergency powers pose to constitutional democracy and individual rights. That is precisely our focus here: periods of extreme security crisis when presidents exercise unusual emergency power from two sources. The first derives from successful presidential claims to executive prerogative as familiarly described by John Locke in Chapter 14 of his Second Treatise of Civil Government: the “power to act, according to discretion, for the public good, without the prescription of law, and sometimes even against it, …” because “it is impossible to foresee, and so by laws to provide for, all accidents and necessities that may concern the public….”Footnote ²⁷ Lincoln, Wilson, FDR, and Bush all successfully claimed prerogative authority to act unilaterally in order to keep the nation safe. Despite Locke's reflections on the inadequacy of laws governing necessitous periods, the second source of presidential emergency power has derived from legislative delegations of wartime authority to commanders-in-chief, the source of most of Woodrow Wilson's authority during World War I.

Analyzing constitutional dictatorship in time, then, is a narrower target than studying the broader subject of the “imperial presidency.” Building on the foundational work of Arthur Schlesinger, Jr., scholars like Andrew Rudalevige and Charlie Savage persuasively capture the resurgence of presidential power and congressional irresponsibility in recent decades.Footnote ²⁸ Yet the emergency powers employed by Lincoln, Wilson, FDR, Bush and Obama in the name of national security pose a more specific and punctuated challenge for constitutional democracy—exceptional moments of liberal vulnerability—than the more general imperial trends of presidencies during the past quarter-century or more.

A similar contrast can be drawn with broader-gauged work on wartime presidents. In her incisive new work on war, time, and the law, Mary Dudziak reminds us that it has become difficult to distinguish between wartime and peacetime during the past century since the United States has been regularly engaged in armed conflict overseas.Footnote ²⁹ It would be a mistake, however, to assume that the perceived imperatives and accepted sacrifices associated with these engagements are largely identical. The same can be said of the prerogative and delegated powers of wartime executives. Chronicling U.S. military decisions and engagements since the early republic, Louis Fisher documents an inexorable aggrandizement of presidential war power to present.Footnote ³⁰ Striking fresh notes, Andrew Polsky deftly shows that wars of various stripes—from the Civil War to Vietnam—have been sources of political torment and programmatic disappointment for diverse commanders-in-chief.Footnote ³¹ The study of constitutional dictatorship and presidential emergency power, however, draws distinctions among the many presidents who oversaw armed conflicts. In the end, the emergency actions and democratic threats of U.S. wartime presidents writ large are anything but commensurate. Harry S. Truman's claims of national peril to justify seizing the steel mills during the Korean War fell flat compared to the more readily accepted necessity of decisive unilateral action by Lincoln, Wilson, FDR, and Bush—not to mention Truman himself at the end of World War II.Footnote ³² Only a small number of American presidents have exercised the kind of constitutional dictatorship described by Rossiter, wielding rare prerogative and delegated powers.

Studying the development of presidential emergency power, then, focuses on those exceptional historical moments when presidential power is most unfettered, and when other branches and ordinary citizens are most likely to endorse or tolerate even egregious violations of civil rights, liberties, and the rule of law. One of my central aims is to show that these moments are not isolated from each other even if they are separated by decades. This draws some contrast with many prominent longitudinal or recurrent temporal processes highlighted by APD and historical institutionalist scholars who think carefully about how history matters; the dynamics in play here do not conform neatly with familiar conceptions such as “punctuated equilibrium,” “critical junctures,” “path dependence,” “displacement,” “layering,” “drift,” “conversion,” “exhaustion,” or “intercurrence,” among others.Footnote ³³ The development of presidential emergency powers during times when the nation's safety seems most in peril has not been a steady, uninterrupted process, but rather an episodic one with starts and stops at irregular intervals. This does not mean, however, that each president in these circumstances has started from scratch, or that each episode stands as an insolated event. Rather, as noted above, what is crucial in this regard are shifting historical set points from which stressed administrations inherit distinct openings and constraints for mapping out a sober course of action. Indeed, my findings and analysis will illuminate an expanding set of precedents, resources, and expectations for the White House to command sweeping emergency power in response to seemingly urgent security threats. The changing set points for executive choice and action during urgent national security emergencies lack the periodicity and longitudinal flow of most historical institutionalist and APD targets of study, but the legacies and residue of early episodes for later ones are unmistakable.

One of the most trenchant descriptions of the dynamics of political and institutional development at the heart of this article is provided by the dissenting opinion of Justice Robert Jackson in Korematsu v. United States (1944). His opinion denouncing Japanese internment pointed out that every judicial (not to mention legislative or popular) validation of presidential and military orders violating the Constitution in the name of emergency gives the action an unsettling level of staying power. As Jackson explained, an unjust or unconstitutional order by executive or military leaders represents an unfortunate “incident.” But when judges and others “review and approve,” the incident has the potential to become “doctrine” with “a generative power of its own.” Once validated, “the principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need,” Jackson warned. “Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.”Footnote ³⁴ As we shall see, the development of presidential emergency power captures well the potential for early incidents to become precedents and doctrines that lay dormant as a “loaded weapon” to be used by executives in seemingly comparable, urgent circumstances. Yet each performance of constitutional dictatorship is also deeply informed by broader developments in the presidency as an institution. The episodic use of the “loaded weapon” of emergency power reflects and interacts with more secular or longitudinal changes in the American presidency and its political environment. Let us now turn to the development of presidential emergency power across three crucial cases.

Lincoln as Precedent-Setter: Constructing Presidential Emergency Power

Given the broad unilateral power seized by the Bush and Obama administrations in the name of national security since 9/11, it is hardly surprising that a growing scholarly literature is wrestling anew with the lessons to be drawn from Lincoln's construction of presidential emergency power during the Civil War. One of the oldest and often hyperbolic debates centers on whether Lincoln was an absolute dictator who seized on the nation's gravest emergency to rule with an iron fist. We have already seen that scholars like Schlesinger and Goldsmith view Lincoln as virtuously circumspect in his use of prerogative powers, a perspective shared by numerous others, including Rossiter who praised Lincoln's “moderation” and considered him “the paragon” of a “democratic, constitutional” wartime president.Footnote ³⁵ Yet Lincoln also was attacked in his own time as an “unlimited despot,” a “usurping butcher,” and a “monarch” who wielded more power than “the Emperors of Russia, France, or China.”Footnote ³⁶ Later critics like Gore Vidal offer dark portraits of Lincoln as “able to make himself absolute dictator without ever letting anyone suspect that he was anything more than a joking, timid backwoods lawyer,” while various scholars describe him as a “tyrant” who did “irreparable harm to constitutional liberty in America” in order to “gratify his own ambition.”Footnote ³⁷ We are left with two vastly different portraits of how Lincoln used executive power during an unprecedented crisis.

A more subtle controversy swirls around Lincoln's own rationale for his emergency actions, and whether these were framed as “inherent” powers drawn from the Constitution's vesting clause or as extra-legal powers undertaken without constitutional or congressional authorization. In Crisis and Command (Reference Yoo2009), John Yoo, legal scholar and author of the “torture memos” while serving in Bush's Office of Legal Council (OLC), is unequivocal that “Lincoln's greatness in preserving the Union depended crucially on his discovery of the broad executive powers inherent in Article II for use during war or emergency.”Footnote ³⁸ As he explains,

Kleinerman's The Discretionary President (Reference Kleinerman2009) is thoroughly at odds with this understanding of Lincoln's own thought on the relationship between constitutionalism and executive prerogative.Footnote ⁴⁰ In this rich and provocative work, Kleinerman valorizes Lincoln for justifying his wartime actions as “extra-constitutional” and thus making his discretionary powers matters of “political necessity” rather than legal precedent. For Kleinerman, the genius of this extra-legal model attributed to Lincoln is that it affords maximal leeway for our chief executives to meet security crises, while denying legal footing for future executive actions that may entail an abuse of power.Footnote ⁴¹

My focus on the historical development of presidential emergency powers points to the limitations of both of these debates. For our purposes, it is not particularly important to determine whether Lincoln was a saint or villain or precisely how much he tilted toward constitutionalism or dictatorship. This section unveils evidence that Lincoln was at times excessive in his use of emergency powers and on other occasions exceptionally controlled in his actions. Yet from a historical-comparative perspective, what matters most is that he exercised a level of executive restraint that clearly sets him apart from successors like Wilson, FDR, and Bush in their use of executive prerogative. The fundamental question is why? Below I argue that the political culture, relative weakness of the executive office, assertiveness of Congress, and the uncertainties of being the first sustained prerogative president shaped this restraint. These factors also informed the vigorous backlash against Andrew Johnson's attempt to command broad executive power beyond the close of the Civil War. Interestingly, regarding the second debate, I find that Lincoln offered alternative extra-legal and inherent-power rationales at different stages of the war. That is, neither Yoo nor Kleinerman are definitive in their interpretations. However, again from an APD vantage on the presidential emergency powers, the more important question is how the extra-legal elements of Lincoln's model became obscured over time whereas successors like the Bush administration felt comfortable invoking Lincoln to buttress inherent power claims. As we shall see, the historical development of the presidency, Congress, the national security state, and political culture provides important answers.

Rejecting the determination of his predecessor's Attorney General that neither the president nor Congress had the power to “make war” on seceding states, Lincoln acted quickly after the Confederates attacked Fort Sumter on April 12, 1861 to put down what he characterized as a conspiracy of rebels rather than of the states themselves.Footnote ⁴² On April 15, the new president called for a special session of Congress but crucially not until July 4. The next day, he declared a state of rebellion and ordered Northern states to supply 75,000 troops under the Militia Act of 1795, an action for which he had clear statutory authority. Yet Lincoln soon thereafter seized powers expressly reserved for Congress under Article I of the Constitution to raise and fund an army and navy, independently enlarging the army by 23,000, the navy by 18,000, calling for an additional 43,000 enlistees, and allocating $2 million from the Treasury to facilitate military recruitment.Footnote ⁴³ “This amazing disregard for the words of the Constitution,” writes Rossiter, “though considered by many as unavoidable, was considered by nobody as legal.”Footnote ⁴⁴ He also imposed a blockade of Southern ports and, in response to mob violence and sabotage in Maryland, he authorized the Commanding General of the U.S. Army to suspend the writ of habeas corpus along the military line from Philadelphia to Washington, D.C. In the process, Lincoln supplanted civilian law enforcement and regular courts with military detention without trial. Finally, he ordered the Post Office to block “treasonous correspondence” and ordered the military arrest and detention of those “being or about to be engaged in disloyal or treasonable practices.”Footnote ⁴⁵

By undertaking these actions unilaterally and in most cases without constitutional or legislative authority, Lincoln in the first eleven weeks of the conflict was waging what James Randall calls a “presidential war” that inspired charges of “unconstitutionality.”Footnote ⁴⁶ From a developmental perspective, it is telling (and hardly surprising) how Lincoln, as a nineteenth-century chief executive setting new precedents in his use of emergency powers, first addressed the controversy. When Congress met for a one-month special session in July 1861, Lincoln issued a message to lawmakers that did not stray far from a Jeffersonian standard in claiming popular support for his actions and by seeking congressional ratification of them.Footnote ⁴⁷ In this message, Lincoln frankly admitted exceeding his authority by enlarging the army and navy and using treasury funds for recruitment efforts. He ultimately explained to Congress that these actions, “whether strictly legal or not, were ventured upon under what appeared to be a popular demand and a public necessity, trusting then, as now, that Congress would readily ratify them.”Footnote ⁴⁸ Congress did just that, retroactively approving all of his military orders and actions.

Significantly, the justification that Lincoln advanced at this early stage was deeply informed by the political thought and institutional norms of the period. Lincoln clearly dismissed the strict-constructionist model of the presidency that rendered Buchanan impotent in response to the secession crisis, but his strong executive was sui generis to the Civil War and at least initially consistent with his Whig critique of President James Polk and the Mexican-American War. As Kleinerman deftly shows, Lincoln as a Whig House member in 1848 insisted that Polk placed himself “where kings have always stood” by failing to defend the necessity of his military actions and by acting as “sole judge” of them without review or judgment by Congress—a critique similar to that leveled by Madison against Washington's Neutrality Proclamation.Footnote ⁴⁹ In an 1854 speech on slavery expansion, Lincoln returned to theme of necessity in praising Jefferson's Louisiana Purchase as a case of virtuous extra-legal prerogative vindicated by retrospective public affirmation: “Jefferson saw the necessity of our government possessing the whole valley of the Mississippi; and though he acknowledged that the Constitution made no provision for the purchasing of the territory, yet he thought the exigency of the case would justify the measure….”Footnote ⁵⁰ This nineteenth-century, largely Jeffersonian conception of executive prerogative richly informs Lincoln's special message to Congress in July 1861 from the equal billing he gives to “public necessity” and “public demand” in justifying his actions, to his appeal for congressional approval and his recognition of the “constitutional competency of Congress” to pursue its own emergency actions. In keeping with his Whig assault on Polk's “sole judgment,” Lincoln advanced a view that was consistent with the theoretical and institutional trends of his time: executive actions that might ordinarily be illegal could be justified if based on public opinion and military necessity, and if subsequently approved by Congress. Yet Lincoln's justification for his emergency powers would evolve during the war.

The Court's Chief Justice Roger Taney attempted to put the brakes on Lincoln's suspension of the writ while acting a circuit court judge in Ex parte Merryman, ruling that only Congress could suspend it and concluding that the necessities of “self-defense in times of tumult and danger” did not increase executive power.Footnote ⁵¹ Yet the White House and Union officers simply ignored the decision, a form of presidential nullification that elicited no northern public outcry or Congressional sanction. In The Prize Cases two years later, a 5-4 Court upheld the legality of Lincoln's blockade and generally endorsed his unprecedented prerogative presidency as “fulfilling his duties as Commander-in-Chief.”Footnote ⁵² In the end, the federal judiciary posed no meaningful check on executive power during the Civil War.

Congress was certainly a more influential force than the federal courts during the conflict, yet it was far more consumed by exercising a strong wartime role than by acting as a guardian of liberty. Lincoln's early deference to Congress, including his initial pursuit of its retrospective authorization, reflected familiar traditions of legislative supremacy. As it had before the war, Congress dominated national governance of the Union with only modest input from the White House. While Lincoln largely stayed out of the legislative sphere, lawmakers insisted on an expansive role of their own in managing the war. They readily approved Lincoln's requests for funds and troops and other powers to suppress the Confederate rebellion. But convinced that legislative intervention was required “to invigorate a timid administration,” they formed a Joint Committee on the Conduct of the War. Criticized for its interference with military appointments and strategy, the Committee nevertheless did nothing to curtail Lincoln's use of emergency powers.Footnote ⁵³ Overall, Congress was often an aggravation to Lincoln, criticizing the White House, imposing extraordinary oversight of the war's prosecution, and jealously guarding its own prerogatives. “We are not under the command of the military of this country,” Senator William Fessenden declared. “They are under ours as a Congress.”Footnote ⁵⁴ In a similar vein, Sumner argued that congressional war powers were limitless: “There is not one of the rights of war which Congress may not exercise; there is not a weapon in its terrible arsenal that Congress may not grasp.”Footnote ⁵⁵ In the end, Congress did virtually nothing to guard civil liberties, but it did more than any of its wartime successors to subject the presidency to oversight and competition in the sphere of war-making.

As the Civil War lengthened, Lincoln unilaterally assigned increasing powers to military authorities. He suspended the writ nationwide in the summer of 1862, issuing an executive order that imposed martial law and military trials for anyone “discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice affording aid and comfort to rebels.”Footnote ⁵⁶ Congress eventually authorized this order and gave broad approval to his suspensions in its Habeas Corpus Act of 1863. Mark Neely's exhaustive work on the subject identifies roughly 15,000 civilian arrests by the military for offenses ranging from draft evasion and desertion to running the federal blockade on southern ports, fraud in government contracts, and acts of spying and sabotage.Footnote ⁵⁷

Scholars like Daniel Farber and Scott Matheson encourage us to place the suspension of habeas corpus, martial law, and military trials in context. The federal law enforcement system amounted to a part-time Attorney General and a few dozen U.S. marshals, while the judicial system was comprised of seventy federal judges and a few other court officials.Footnote ⁵⁸ In contrast to his successors during the first two world wars, Lincoln had no federal law enforcement agencies like the Justice Department or Federal Bureau of Investigation (FBI) to rely upon in neutralizing enemy spies, agents, and rebel sympathizers in the north. Placed in the context of the nineteenth-century American polity, military arrests and trials during the Civil War were “less a matter of a strong, centralized police state than one that was weak and balkanized.”Footnote ⁵⁹ As Farber explains, Lincoln's prerogative presidency was constrained both by his own moderation and by limitations imposed by rival political actors and the state of governing institutions:

In his classic treatment, Randall similarly concludes that Lincoln's “character operated to modify and soften the acts of overzealous subordinates and to lessen the effect of harsh measures upon individuals. He was criticized for leniency as often as for severity. Though there were arbitrary arrests under Lincoln, there was no thorough-going arbitrary government.”Footnote ⁶¹ Various scholars describe Lincoln as exercising a comparable measure of restraint by limiting military efforts to restrict newspaper reporting and by tolerating most dissent.Footnote ⁶² “Lincoln charted a middle course that melded his sense of the practical with his commitment to the law,” notes civil liberties expert Geoffrey Stone. “He claimed for himself—as president—powers both unprecedented and extraordinary, but he took care to root these assertions of authority in the Constitution.” Stone insists that Lincoln rejected the view of Senator Charles Sumner (R-MA) and others that he should regularly act outside the authority of the Constitution during the crisis.Footnote ⁶³

Kleinerman would quarrel with this understanding of Lincoln's conception of executive prerogative. He argues that as the Civil War progressed, Lincoln's emphasis on “popular demand” and congressional deference in his July 1861 special message was abandoned in favor of a resolute focus on necessity and constitutionality.Footnote ⁶⁴ To establish this claim, Kleinerman highlights an 1864 letter from the President to the newspaper editor Albert Hodges explaining his actions: “I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the Constitution, through the preservation of the nation.”Footnote ⁶⁵ The result is a synthesis of the Jeffersonian and Hamiltonian standards of prerogative. The president's emergency actions are “otherwise unconstitutional” (extra-legal) in Jeffersonian fashion but they cannot be vindicated by public affirmation since the people may willingly sacrifice constitutionality in favor of public interests. “Otherwise unconstitutional” measures can only “become lawful” if an executive fulfills the Hamiltonian standard of proving their necessity. In this formulation, Congress serves the constitutional order best when it reviews emergency actions of executives and holds them accountable.Footnote ⁶⁶

But did Lincoln understand his actions to be legally questionable and the product of extra-constitutional powers? The evidence is murkier than Kleinerman admits (however compelling his theoretical contribution). Lincoln undoubtedly evolved during the war in how he justified his use of emergency powers, and his deference to Congress indeed waned over time. Yet his later position is neither settled nor adequately encapsulated by the 1864 Hodges letter. Notably absent from such analysis is Lincoln's very public claim in his final Emancipation Proclamation of 1863 that he could abolish slavery in areas under rebellion “by virtue of the power in me vested as Commander-in-Chief, of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States.”Footnote ⁶⁷ When Illinois critics challenged the constitutionality of the Proclamation, Lincoln insisted that his powers as commander-in-chief and military necessity provided sufficient warrant for emancipation. After reiterating how “the constitution invests its Commander-in-Chief, with the law of war, in time of war,” he asserted that Union generals “believe the emancipation policy, and the use of colored troops, constitute the heaviest blow yet dealt to the rebellion.”Footnote ⁶⁸ Ellis reminds us that Lincoln initially explained actions like the Southern blockade as consistent with his constitutional duty to “take care that the Laws be faithfully executed” against the “unlawful” and “disorderly proceedings” of Confederates. But as the war progressed, “Lincoln turned to the commander-in-chief clause with increasing regularity to justify his actions.”Footnote ⁶⁹ Claims of constitutional authority and inherent power may not have been as far removed from Lincoln's intellectual and legal repertoire as Kleinerman insists.

It is unnecessary to resolve the precise nature of Lincoln's understanding of emergency powers in later stages of the Civil War for us to draw the obvious conclusion that he employed them in a markedly different political context than his “modern” counterparts. To understand why Lincoln exercised a level of circumspection that sets him apart from his successors requires an understanding of the constraints imposed by his cultural and institutional environment. As we have seen, a comparatively weak executive branch and an anemic law enforcement system severely limited Lincoln's ability to impose sweeping command and control even if he wanted to. Whereas Lincoln was generally unhampered by the federal courts, he faced an aggressive Congress that believed in legislative supremacy and that endorsed his crisis presidency even as it asserted its own far-reaching war powers. Indeed, the Civil War Congresses did not delegate vast legislative authority to the president in response to emergency as became the norm in the first two world wars. Pinning down the wellsprings and extent of Lincoln's concern for constitutional democracy or of his moderating character may be an elusive enterprise. But in addition to institutional constraints, we also have noted that Lincoln was influenced by political doctrines of his era that included particular understandings of prerogative, constitutionalism, and democratic accountability. These doctrines clearly shaped the fact that Lincoln in 1864, in contrast to European practice, submitted “to the free choice of the people and stood ready to relinquish his position to a rival if the people so voted.” Significantly, he did so even when he expected to lose the election as late as August 1864.Footnote ⁷⁰ In fact, the midterm election of 1862 and the presidential campaign of 1864 were among the first general elections “ever held in a nation at war since manhood suffrage was adopted.”Footnote ⁷¹ This reminds us that Lincoln also was in the distinctive position of authorizing the first presidency to exercise sweeping and sustained unilateral executive power in the name of national security. As a consequence, he did not have the luxury of his successors to find authority for emergency actions in a body of statutory law, judicial precedent, or examples of previous administrations.

We obviously have no systematic gauge of public opinion during the Civil War. Historians posit that Northern sentiment was deeply divided about the war itself, the abolition of slavery, and conscription, but limitations on key civil liberties elicited relatively little popular resistance.Footnote ⁷² Other than the Sedition Act of 1798, Stone reminds us, the U.S. by the start of the Civil War had “little experience” with civil liberties like freedoms of speech and press in wartime. Indeed, he points to influential constitutional scholars of the period who considered it “exquisitely absurd” that a civil war could be “waged under the protection of the Bill of Rights.”Footnote ⁷³ Once the war did conclude, however, efforts to restore peacetime norms for civil liberties and antebellum standards of limited executive power were swift.

The Court and Congress wasted little time in terminating executive prerogatives built up during the Civil War. The Supreme Court in Ex parte Milligan (1866) ruled that military tribunals have no jurisdiction over civilians when the operations of regular courts are not threatened by armed conflict. The Court understood that the timing of the decision created a very different context from that of The Prize Cases: “Now that the public safety is assured,” Justice David Davis wrote, “this question, as well as others, can be discussed and decided without passion, or the admixture of any element not required to form a legal judgment.”Footnote ⁷⁴ In the postwar environment, the Court asserted that the Constitution's principles held “equally in war and in peace,” that it applied to “rulers and people,” that it provided all the powers “necessary to preserve its existence,” and that any suspension of its provisions tilted towards “anarchy or despotism.”Footnote ⁷⁵ The Milligan opinion did little to blunt the use of emergency powers by future wartime presidents, but it does provide a bellwether of fervent post-Civil War resistance to executive power. The strongest repudiation of presidential power, of course, centered in Congress and its showdown with Lincoln's successor, Andrew Johnson, over Reconstruction policy. The congressional election of 1866 gave Radical Republicans firm control over Congress, and they proceeded in 1867 to pass legislation that stripped the White House of powers to influence Reconstruction. Johnson's futile efforts to defy these measures and to reassert executive authority would become the basis of his impeachment trial. By the time Ulysses S. Grant ascended to the presidency, the classic Whig principle of legislative supremacy again characterized national politics.Footnote ⁷⁶

Executive Emergency Power, Take Two: The Progressive Presidency in Total War

Woodrow Wilson's orchestration of wartime government reflected a very different context than Lincoln's more than a half-century before. It was one in which Progressive Era adherents of executive power from Theodore Roosevelt and Herbert Croly to Wilson remade the office into a popular, rhetorical, and legislative engine of political change. The Progressive departure from earlier understandings of executive power hinged, as Skowronek has noted, on a rejection of traditional partisan forms for bridging constitutional divides, devotion to supplanting Constitutional originalism with a “living” Constitution that nimbly responded to an “organic” society, and a yearning for popular presidents capable of mobilizing national opinion and lawmakers behind great public ends.Footnote ⁷⁷ This vision was given expression by Progressive governors at the state-levelFootnote ⁷⁸ and by the comparatively modern media and legislative leadership exercised by Presidents William McKinley and Roosevelt.Footnote ⁷⁹ It is against this backdrop that Croly proclaimed that vigorous presidents of Theodore Roosevelt's mold would liberate Americans from deadening “government by lawyers.”Footnote ⁸⁰ In Constitutional Government, Wilson more familiarly marveled that the modern president built by Roosevelt “is at liberty, both in law and conscience, to be as big a man as he can.”Footnote ⁸¹ Like many of his reform-minded contemporaries, he saw the Constitution as “a vehicle of life” instead of “a mere legal document,” a warrant for broad executive discretion in the public interest. Concerning foreign affairs, he added that “the Executive must of necessity be its guide … [and] in large measure control its conduct.”Footnote ⁸² In short, the prerogative presidency that accompanied the United States' entry into World War I was constructed within institutional and cultural environs that Lincoln would scarcely recognize.

Progressive conceptions of presidential power deeply informed Wilson's first term in the Oval Office. He embraced rhetorical and public opinion leadership, and he urged members of Congress to view him not as a rival but as “a human being trying to cooperate with other human beings in a common service.”Footnote ⁸³ His commitment to popular and legislative leadership was captured dramatically when he became the first president in more than a century to deliver his annual message to Congress as a speech in person, breaking a revered tradition dating to Jefferson. Wilson's media presidency featured regular press conferences and the rise of the White House Correspondent's Association. He aggressively advanced an ambitious domestic reform agenda through direct legislative leadership. To this end, he nurtured close ties with Congress by often meeting privately with lawmakers in his office, journeying to congressional offices, and installing a direct phone line to facilitate communications between the White House and Capitol Hill.Footnote ⁸⁴

In matters of foreign policy and national security, Wilson set about to win public support and congressional cooperation by exercising rhetorical and legislative leadership in the same fashion as he advanced domestic reform. However, he was convinced that the presidents also were vested with authority to act unilaterally in foreign affairs when lawmakers balked. Responding to the arrest of U.S. sailors and eager to overthrow Victoriano Huerta as Mexico's leader in 1914, for instance, Wilson called a special session of Congress to gain approval for mobilizing military forces against Mexico. Akin to his approach on domestic policy initiatives, he hoped to keep the branches “in close conference and co-operation.” But when the Senate questioned the action, he did not hesitate to independently impose a seven-month occupation of Veracruz by U.S. troops.Footnote ⁸⁵

The popular rhetorical presidency that Jeffrey Tulis credits Wilson with consolidating assumed a distinctly intolerant guise in the context of World War I.Footnote ⁸⁶ Although the enemy was located almost three thousand miles away, Wilson placed a heavy emphasis in his wartime rhetoric, legislative proposals, and executive actions on the enemy within, singling out groups like the foreign-born, and German-Americans in particular, as significant threats to domestic security. Indeed, he successfully coordinated a pressure campaign that heightened popular and official fears of espionage and sedition on the homefront and punished all forms of dissent from any group whose loyalty was questioned from German-Americans to labor agitators and pacifists. Following the Lusitania crisis of July 1915, Wilson offered a menacing portrait of the nation's large foreign-born population. “The gravest threats against our national peace and safety have been uttered within our borders,” he declared. “There are citizens of the United States, I blush to admit, born under other flags but welcomed by our generous naturalization laws to the full freedom and opportunity of America, who have poured the poison of disloyalty into the very arteries of our national life.” He urged Congress to provide legislation with which their activities might be curbed. These laws were the means by which “such creatures of passion, disloyalty, and anarchy” might be “crushed out.”Footnote ⁸⁷ When lawmakers failed to act, Wilson's Attorney General, Thomas Gregory, urged Congress in the summer of 1916 to adopt a law that addressed “the new conditions of war by propaganda” by establishing new limits on speech and press freedoms as well as new punishments for sabotage.Footnote ⁸⁸ Congress paid little heed to renewed pressure, referring the matter to committees in both houses. Yet the administration's drumbeat against German-Americans, dissenters, pacifists, and others it deemed suspicious grew stronger over time.

Consistent with his Veracruz actions, Wilson's efforts to mold legislation related to World War I were forceful and, when Congress did not follow his lead, he did not hesitate to act unilaterally. In 1917, the White House sought congressional approval for arming American merchant ships in order to stave off attacks from German submarines. Wilson told lawmakers that he wanted their backing “in whatever it may become necessary for me to do,” yet he also restated his belief that he could go it alone. “I already possess the authority without special warrant of law,” he explained “by the plain implication of my constitutional duties and powers.” When the Senate failed to follow his lead, Wilson armed the ships on his own.Footnote ⁸⁹

Once the United States formally entered World War I, Wilson's wartime presidency reflected a familiar repertoire: vigorous efforts to shape public opinion, to exercise strong legislative leadership to win congressional delegation of broad power, and to act unilaterally where he saw fit. On the same day that Wilson's War Resolution passed Congress (April 6, 1917), Wilson issued an executive order imposing regulations for controlling non-citizens of German ancestry living in the country. The regulations included an extensive list of restrictions on the movement, employment, property, and activities of these so-called enemy aliens. During the course of the war, more than 6,300 non-citizens of German descent were arrested and more than 2,300 were confined to internment camps.Footnote ⁹⁰ Wilson issued a secret executive order the next day that empowered federal bureaucratic heads to remove any employee considered a loyalty risk “by reason of his conduct, sympathies, or utterances, or because of other reasons growing out of the war.”Footnote ⁹¹ He also claimed that the war emergency empowered him to create a new Committee on Public Information, a controversial government propaganda agency that so often embroidered or concealed news to provide upbeat pictures of the war effort that the New York Times dubbed it “the Committee on Public Misinformation.”Footnote ⁹²

Wartime legislation enacted in 1917 and 1918, at the White House's urging, granted a staggering array of powers to the President for controlling the nation's economy. Laws like the Lever Act of 1917 granted Wilson control over the railroads, shipbuilding, water systems, and telegraph and telephone systems and the power to regulate exports and transportation priorities.Footnote ⁹³ At the same time, the administration also sought unprecedented authority to attack what it perceived as internal or domestic threats to the war effort.

Publicly, Wilson made a point soon after the United States entered World War I to warn political radicals, German-Americans, and antiwar activists that if they demonstrated an ounce of disloyalty, “it will be dealt with a firm hand of stern repression.”Footnote ⁹⁴ He also pressed a reluctant Congress to enact the administration's Espionage bill that had languished since 1916, casting this proposal for limiting dissent and freedoms of the press and speech as a national security imperative. “From the very outset of the present war,” Wilson declared, Germany “has filled our unsuspecting communities and even our offices of government with spies and set criminal intrigues everywhere afoot against our national unity.”Footnote ⁹⁵ In response to the administration's dire warnings of security threats at home, Congress enacted Wilson's Espionage Act in June 1917, which made it a crime for anyone to convey information that might hurt the operations or success of the U.S. armed forces or promote the success of its enemies. Section 3 of the law stipulated fines of up to $10,000 and jail sentences of up to 20 years for those who “shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces of the United States, or shall willfully obstruct the recruitment or enlistment service of the United States.” The administration came to Congress a year later for amendments to expand restrictions on speaking out against the government. Sounding a familiar refrain concerning “dangerous enemies within our confines,” Wilson officials complained that the threats to national unity were caused “not by any lack of activity upon the part of prosecuting officials,” but rather by “the lack of laws relating to disloyal utterances.”Footnote ⁹⁶ The resulting Sedition Act of 1918 added eight new criminal offenses for “uttering, printing, writing, or publishing any disloyal, profane, scurrilous, or abusive language” directed toward the U.S. government.

More than 2200 people were prosecuted by the Justice Department under the Espionage and Sedition laws, including a Republican nominee for the Senate, J.A. Peterson, and roughly 150 leaders of the Industrial Workers of the World (IWW). Roughly half of these individuals were convicted, resulting in the largest number of political prisoners in American history.Footnote ⁹⁷ Among the most notable of these was Eugene Debs, the Socialist Party leader who garnered nearly 10 percent of the vote in the 1912 presidential contest. Debs was arrested and sentenced to 10 years in prison for making a speech that “obstructed recruiting.”Footnote ⁹⁸ In 1918, Justice Department investigators quietly noted that both judges and juries, eager to demonstrate their support for the war effort, were often overzealous in convicting suspects under these laws and regularly imposed harsh sentences.Footnote ⁹⁹

Under the Espionage Act, Wilson's Postmaster General, Albert Burleson, was vested with vast authority to suppress critical opinion during the First World War by barring any magazine, newspaper, circular, pamphlet, letter, or other material that violated the statute from the mails. Wilson also issued an executive order creating a Board of Censorship headed by Burleson to scrutinize all correspondence and communications leaving the country. The order strengthened Burleson's authority to scrutinize private letters and other materials using the postal system.Footnote ¹⁰⁰ Strikingly, Attorney General Gregory wrote a detailed memo to Wilson raising serious doubts as to whether the censorship powers granted to the Postmaster General were constitutional. As Gregory saw it, Burleson's new authority could not be constitutionally justified because it gave an executive official “far reaching inhibitory effect upon the right of free public discussion.”Footnote ¹⁰¹ Wilson quickly dismissed Gregory's concerns, reaffirming the Postmaster General's broad censorship powers “upon evidence satisfactory to him.” Burleson maintained draconian control over domestic and international mails, including stringent restrictions on dozens of periodicals that either lost their mailing privileges or were compelled to print nothing about World War I for its duration. When prominent figures such as Croly or Upton Sinclair privately complained to Wilson about Burleson's iron rule over the mails, he staunchly defended his Postmaster as using censorship powers as the President intended to curb disloyal speech when it hurt the war effort.Footnote ¹⁰²

With Wilson's endorsement, the Justice Department also delegated a variety of responsibilities to the American Protective League (APL), an officially recognized and funded auxiliary of the Department. More than 250,000 badge-wearing volunteers of the APL spied on neighbors, opened mail, eavesdropped on conversations, and harassed persons of German descent. This group was only the largest of many citizen groups that helped limit individual and group freedoms.Footnote ¹⁰³ The anxieties of unorganized publics sometimes boiled over into brutal mob violence. One wartime dissenter, Richard Brazier, described the American people as absorbed in “an unprecedented height of frenzy” that fueled vigilante activities from lynching to tarring and feathering. “A law-ridden nation we are,” he wrote, “yet at the same time a most lawless one.”Footnote ¹⁰⁴

In contrast to Lincoln, Wilson made no assurance to relinquish sweeping emergency powers at war's end. After the Armistice of November 11, 1918, Wilson tellingly ordered administration officials to continue targeting and prosecuting hundreds of cases under the Espionage and Sedition Acts. In May of 1920, he vetoed a bill that would have terminated the statutes. For its part, the Supreme Court did not decide Espionage Act cases until after the armistice. Its rulings in well-known cases like Schenk v. United States endorsed a broad interpretation of the Espionage law and affirmed severe punishments for violators. The Court upheld Debs' ten-year sentence for delivering a speech in support of three socialists who opposed the draft. Critically, as legal scholars remind us, First Amendment case law remained largely undeveloped at the time. Seeds for future protection were being planted, however. Particularly influential was Judge Learned Hand's insistence in Masses Publishing Co. v. Patten that government restriction and punishment of speech must be confined to “triggers of action,” entailing “direct incitement of violent resistance.”Footnote ¹⁰⁵ Dissents by Oliver Wendell Holmes and Louis Brandeis in Abrams v. United States sounded similar themes, calling for vigilance against “attempts to check the expression of opinions we loathe” unless they “so imminently threaten … the law that an immediate check is required to save the country.”Footnote ¹⁰⁶ At the advocacy level, a settlement worker, Roger Baldwin, organized the National Civil Liberties Bureau (NCLB) with support from prominent reformers like Jane Addams, Clarence Darrow, John Dewey, and Felix Frankfurter. The NCLB later became the American Civil Liberties Union (ACLU), but its negligible impact during the war is exemplified by Baldwin's arrest and conviction during the conflict.

Government repression of dissenters and other alleged enemies of the state did not subside at the close of World War I. Not only did the Wilson administration derail congressional efforts after the armistice to terminate arrests and prosecutions under the Espionage and Sedition Acts, but the Red Scare engendered fresh anxieties and official crackdowns. Thousands of suspected communists and radical leftists were the target of raids and arrests by the Justice Department between 1919 and 1921 under the leadership of newly appointed Attorney General Alexander Mitchell Palmer. In a period that historian Ann Hagedorn aptly describes as a “savage peace,”Footnote ¹⁰⁷ Palmer's zealous campaign to free the country from a dreaded Bolshevik menace was deeply entwined with his own presidential ambitions. Within the Justice Department, John Edgar Hoover was promoted from his wartime post as head of the Enemy Alien Registration Section to director of the new General Intelligence Division of the Bureau of Investigation. Hoover would ride fears of foreign radicalism and communism to the head of the Bureau of Investigation by 1924. Warren G. Harding breezed into the White House in 1921 pledging a “return to normalcy,” but a return to isolationism in the 1920s did not stymie the rise of a new U.S. national security state.Footnote ¹⁰⁸

FDR and the Consolidation of Presidential Emergency Powers

Whereas Theodore Roosevelt and Wilson initiated a modern conception of presidential power equated with decisive popular, legislative, and foreign policy leadership, Franklin Delano Roosevelt institutionalized it during his unprecedented tenure as chief executive. FDR fundamentally redefined the responsibilities of the national state in response to the Great Depression and, in the process, irreversibly placed the modern presidency at the center of popular rule and crisis management in American government. After exercising broad executive power and leadership to meet the demands of the Depression, it is hardly surprising that Roosevelt expected to exercise unbridled power during World War II. As scholars from Joseph Persico to Erwin Hargrove have illuminated in terms of surreptitious planning with Great Britain and a secret naval war with Germany, Roosevelt proved adept both at deception and unilateral action in leading a stubbornly isolationist nation to war against fascist regimes.Footnote ¹⁰⁹ After official U.S. entry, FDR largely dictated the terms by which the United States responded to the perils of World War II while presiding over an expanding defense and intelligence establishment. More than Lincoln and Wilson, FDR also demanded near subservience from the other branches on decisions connected to national security. In turn, Congress and the Court mostly obliged with this domineering commander-in-chief regardless of the civil liberties implications. The cases of German saboteurs and Japanese internment provide special traction on the character and context of FDR's prerogative presidency.

One of the most important threats of sabotage on American soil during World War II originated from Nazi Germany. Under Operation Pastorius (named after Franz Pastorius, allegedly the first German immigrant to America in 1683), the Third Reich trained eight repatriated Germans, all of whom once lived in the United States and two of whom were naturalized American citizens, to return to U.S. soil to blow up armament installations, train stations, and other targets. German U-boats dropped off one team of four on Long Island to penetrate New York and another team of four in Florida to penetrate Chicago in June 1942. Only a few days after their arrival, two leaders of the New York team turned themselves in to the federal authorities and revealed the plot. In short order, all eight of the German saboteurs were under federal custody before any mission was carried out.Footnote ¹¹⁰

After considering their cases, Attorney General Biddle and Justice Department lawyers estimated that the German saboteurs might be convicted in a civilian court of conspiracy and receive three years in prison. “They had not committed any act of sabotage,” he later explained. “Probably an indictment for attempted sabotage would not have been sustained in a civil court on the grounds that the preparations and landings were not close enough to the planned acts of sabotage to constitute attempt. If a man buys a pistol, intending murder, that is not an attempt at murder.”Footnote ¹¹¹ Once the foiled operation became public, however, popular and media pressure mounted for tough action. Newspaper editorials screamed that it was “time to get tough,” while telegrams poured into the White House urging Roosevelt to “show the world we are not a bunch of mush hounds.”Footnote ¹¹² In late-June, FDR made it clear to Biddle that he was determined to see the eight saboteurs tried by special military tribunal and given swift and severe sentences. “The two American citizens are guilty of high treason,” he noted. “Surely they are just as guilty as it is possible to be and it seems to me that the death penalty is almost obligatory.” In the case of the other six saboteurs, Roosevelt saw an “absolute parallel” to Nathan Hale and Major Andre during the Revolution. “Both of them were hanged.”Footnote ¹¹³

He also made it clear at a White House meeting that he would fight judicial review for the saboteurs. “I want one thing clearly understood, Francis,” FDR told Biddle. “I won't give them up … I won't hand them over to any United States Marshall armed with a writ of habeas corpus. Understand?”Footnote ¹¹⁴ On July 2^nd, the President issued an order appointing members to a military commission, the prosecutors, and defense counsel. The order also empowered the military commission to establish rules of procedure unconstrained by earlier Congressional legislation or the Manual for Courts-Martial, and it departed from the Articles of War by making the death penalty subject to a two-thirds rather than a unanimous vote.Footnote ¹¹⁵

Roosevelt's military commission order also stipulated that he alone had “final reviewing authority” over its sentences, yet the judiciary did ultimately weigh in. As the military trial proceeded swiftly, lawyers for the eight defendants contacted Justices of the Supreme Court and eventually gained a special session over the summer to consider the constitutionality of the commission. During two days of oral arguments for Ex parte Quirin (1942), Biddle spoke for the President in contending that the Milligan doctrine establishing a general right to a civil trial when courts were available away from combat had become “absurd” because “war today is so swift and so sudden and so universal.”Footnote ¹¹⁶ He also justified the commission in terms of inherent executive power. “I have always claimed that the President has special powers as Commander-in-Chief,” he told the Justices. “I argue that the Commander-in-Chief, in time of war and to repel an invasion, is not bound by a statue.”Footnote ¹¹⁷ The Court moved swiftly to issue a per curium opinion by the end of July, with a full opinion to follow several months later. Chief Justice Harlan Fiske Stone was convinced that the Court must be unanimous in a swift per curiam opinion and its later full opinion. While the Justices agreed to uphold FDR's military commission, they debated over the extent to which presidential emergency power could go unchecked. Robert Jackson advanced the notion that elements of executive war power were never subject to legislative or judicial control, noting that “we would have a serious question of the validity of any such effort to restrict the Commander in Chief in the discharge of his Constitutional functions.”Footnote ¹¹⁸ When Hugo Black and other Justices were reluctant to go that far, Felix Frankfurter recommended that they avoid “abstract constitutional discussions” in affirming the power of the President to establish the military commission. Instead, he advised his colleagues to avoid “verbalistic conflicts because the inroads on energy and national unity that such conflict inevitable produce, is a pastime we had better postpone until peacetime.”Footnote ¹¹⁹ All eight saboteurs were sentenced to death by the military commission; six were soon electrocuted while two who turned informants had their sentences commuted to 30 years in prison.

Many patterns evident in the German saboteurs case—aggressive assertions of prerogative power by the Roosevelt administration, special deference from other branches, and a symbiosis with majority opinion—characterize Japanese internment as well. Initial pressure for Japanese curfews and evacuation came from California's political leaders and a shaken Western white populace. They were backed forcefully by the Army's Western Theater commander, Lt. General John L. DeWitt, who thought most Japanese immigrants and Japanese-American citizens on the Pacific Coast had divided loyalties and in many cases actively aided the enemy. The fact that most of those he presumed to be disloyal were born in the United States made little difference, according to DeWitt, because “the racial strains were undiluted” regardless of how long one's family lived in the country.Footnote ¹²⁰ His advocacy for Japanese removal from the West Coast was supported by top officers of the Armed Forces.

To assess the alleged security risks posed by the nation's Japanese population, Roosevelt had more intelligence resources at his disposal than any of his wartime predecessors and he used them to investigate Dewitt's claims. Significantly, work done by two of his top intelligence advisers, William Donovan and John Franklin Carter, clarified for the President that the Army's evidence of Japanese disloyalty was spurious. This proof included unsubstantiated reports from California that ground glass had been found in seafood canned by Japanese workers or that Japanese field hands had sprayed overdoses of arsenic poisoning on vegetables. Donovan and Carter informed FDR that no one had been arrested for this alleged sabotage and that there was no evidence of ground glass or arsenic-poison in the food supply or of other forms of rumored sabotage.Footnote ¹²¹

Sitting atop 42 district offices and a broad network of informational sources, FBI Director J. Edgar Hoover also investigated the internal Japanese threat. After reviewing the best available intelligence, Hoover put the matter frankly to Roosevelt in a confidential memo: “The necessity for mass evacuation is based primarily upon public and political pressure rather than on factual data. Public hysteria and, in some instances, the comments of the press and radio announcers have resulted in a tremendous amount of pressure being brought to bear on Governor Olson and Earl Warren.”Footnote ¹²² Thanks to Donovan, Roosevelt also received the counsel of General Ralph Van Deman, head of military intelligence during the First World War. After studying available information, he concluded that evacuation and internment of Japanese Americans was not only unnecessary but “about the craziest proposition that I have heard of yet.”Footnote ¹²³

While Donovan and Carter quietly presented Roosevelt with information that challenged the case for Japanese internment, Biddle argued openly and vehemently against the move. He was “sturdily backed” in resisting “the Army's pressure to evacuate the Japanese” by Hoover. When confronted with the absence of reliable evidence of Japanese sabotage, General DeWitt remained adamant about the impending threat posed by the Japanese-American population. “The very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken,” he argued.Footnote ¹²⁴ Secretary of War Henry Stimson and the Army brass agreed, and Roosevelt quickly expressed support for their recommendations.Footnote ¹²⁵ Claiming military necessity, the President issued Executive Order 9066 on February 19, 1942 authorizing the Army “to apprehend, restrain, secure, and remove” any persons, including citizens, from sensitive West Coast locations “for the successful prosecution of the war.”Footnote ¹²⁶

One month later, Congress passed Public Law 503 establishing criminal sentences for those who defied the order. Roosevelt had his share of rows with Congress as a wartime president, losing struggles over regulation of labor disputes, bituminous coal, federal revenue policy, and limits on salaries. Senator Arthur Vandenburg proposed a Joint Committee on the Conduct of the War, trying to awaken congressional oversight on a par with that of the Civil War, but it went nowhere. Whereas Congress rebuffed several of FDR's domestic initiatives during World War II, it supported every major wartime initiative requested by Roosevelt, including broad majorities in both houses passing Public Law 905.Footnote ¹²⁷

Japanese and Japanese-Americans were never specifically identified in either the executive order or subsequent legislation, but they alone were targeted for forced evacuation, relocation, and internment. Tellingly, when Army commanders on the East Coast raised the possibility of evacuating Italian and German aliens (not citizens of German and Italian origin), Roosevelt swiftly savaged that idea as harmful to national unity and morale.Footnote ¹²⁸ Roughly 120,000 men, women and children of Japanese ancestry—more than two-thirds of whom were birthright citizens—were interned under armed guard in “relocation camps” from Wyoming to Arkansas.

In the federal courts, the ACLU joined Japanese-American defendants in challenging curfews and internment. In Korematsu v. U.S. decision,Footnote ¹²⁹ a 6-3 majority of the Supreme Court moved beyond the evasive Hirabayashi v. U.S. rulingFootnote ¹³⁰ to offer strong support for federal authorities in evacuating all persons of Japanese ancestry. Justice Frank Murphy issued a blistering rebuke of the policy in his dissenting opinion: “This exclusion goes over the brink of constitutional power and falls into the ugly abyss of racism.” But as Murphy's former clerk later related, the majority was resolute that the President and the military should be accorded as much authority as it wanted given the severity of the crisis.Footnote ¹³¹ When administration officials increasingly recommended closing the camps in 1944, Roosevelt and his political advisers were determined that no action should be taken until after the 1944 election lest they spur a backlash in California.

During the Second World War, many observers praised the White House for eschewing harsh crackdowns on free speech and dissent that characterized the First World War. The archival record suggests, however, that FDR worked closely with Hoover to suppress the limited dissent that surfaced during the war. Assisted by the Justice and War Departments, the administration employed investigations, surveillance, denaturalization and deportation procedures, postal censorship, and threats of prosecution to harass and silence the minority of dissenters without resort to prosecution.Footnote ¹³² Roosevelt also personally authorized in May 1940 the use of “wire-tapping by Government agents” targeting the “conversation or other communications of persons suspected of subversive activities.”Footnote ¹³³

In contrast to Johnson and Harding, Harry S. Truman ascended to the Oval Office while the nation was still at war. Of course, Truman's exercise of broad emergency power beginning in April 1945, including authorization for dropping atomic bombs on Japan, endured well after World War II concluded. Indeed, both FDR's influential tenure as Commander in Chief and new Cold War imperatives established precedents and lasting resources that transformed the national security powers of the presidency. Rossiter's model of “termination”Footnote ¹³⁴—of ending presidential emergency powers as soon as a security crisis is resolved—was now a pipedream. The famous Steel Seizure Case Footnote ¹³⁵ demonstrated that the Court was willing to constrain Truman's claim of military authority to end a steel strike. Yet the Court's decision reflected the fact that what it saw as at stake was a domestic labor conflict rather than a national security emergency. One year later, however, the same Court in United States v. Reynolds Footnote ¹³⁶ consolidated the “state secrets privilege” by permitting the government to withhold classified materials or information in court proceedings whenever it claimed military secrets might be compromised. The Reynolds ruling paved the way for administrations ever since to invoke the states secrets privilege to derail cases scrutinizing various intelligence and military operations. At the same time as the size of the U.S. military in peacetime reached record levels, Congress passed the National Security Act in 1947 to create the Central Intelligence Agency (CIA) and National Security Council (NSC). In 1950, Truman became the first president in U.S. history to commit American troops to a major war without congressional authorization. Tellingly, no subsequent president has considered congressional declarations of war to be a constitutional requirement. The precedents for wartime presidency had been profoundly altered and the status of executive military and national security power could not revert back to Rossiter's vision of “normal” power distributions before World War II.