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Following

sures that a stricken Nation in the

tary) carte blanche approval of actions previ-

midst of a stricken world may

ously taken pursuant to section 5(b) of

Roosevelt's decla-

require.

TWEA but also, in language that remains in

ration, the United

the U.S. Code to this day,106 granted carte

But in the event that Congress

States remained

shall fail to take one of these two

blanche congressional authorization to any-

courses, and in the event that the

thing any president has done since March 9,

in a state of

national emergency is still critical, I

1933--or will do in the future--"pursuant" to

national emer-

shall not evade the clear course of

section 5(b) of TWEA.

duty that will then confront me. I

That amendment to TWEA was part of

gency for more

shall ask the Congress for the one

the Emergency Banking Relief Act, which

than 45 years.

remaining instrument to meet the

passed the House after only 38 minutes of

debate.1 0 7The bill was not even in print when

crisis--broad executive power to

it was passed by both houses of Congress.1 0 8

wage a war against the emergency, as

great as the power that would be

With such a beginning, it is hardly sur-

given to me if we were in fact invaded

prising that Roosevelt became the most pro-

by a foreign foe.9 8

lific author of presidential directives--and a

favored model for recent presidents.

Roosevelt exercised legislative powers aggres-

Roosevelt's first official act, at 1 A.M. on

sively, freely invading private rights with pres-

March 6, 1933, was to issue Proclamation

2038.9 9 The proclamation declared a state of

idential directives. He issued executive orders

to create labor-management dispute resolu-

national emergency and established a bank

tion mechanisms1 0 9and to seize private busi-

holiday, citing as authority the 1917 Trading

with the Enemy Act (TWEA). That act, how-

nesses, even before the United States entered

World War II.110 On June 7, 1941, for exam-

ever, provided no such authority: expressly, it

governed no transactions among citizens

ple, Roosevelt issued EO 8773 to seize the

within the United States--and no transac-

North American Aviation Plant because of an

tions absent a declared state of war.100

ongoing strike, and with EO 8928 he seized

another airplane parts facility that had

Following Roosevelt's declaration, the United

refused to hire back striking workers.1 1 1

States remained in a state of national emer-

gency for more than 45 years.101

But the greatest and most notorious inva-

sion of private rights occurred when

On March 9, 1933, Congress obligingly

Roosevelt issued EO 9066, under which more

amended TWEA to remove the wartime lim

-

than 112,000 U.S. citizens and residents of

itation; at the same time, Congress broadly

Japanese descent were removed from their

authorized the newly sworn-in president's

actions ex post facto.1 0 2 By its action,

homes and forced into relocation camps. The

order was based solely on his assertion of

Congress "approved and confirmed . . .

authority as commander in chief,1 1 2although

actions, regulations, orders and proclama-

tions heretofore and hereafter taken, pro-

the Congress subsequently "ratified and con-

mulgated, made, or issued by the President

firmed" the executive order.

of the United States or the Secretary of the

Roosevelt was not content simply to legis-

Treasury . . . pursuant to the authority con-

late, however. During the war he demanded

ferred by subdivision (b) of section 5103 of the

that Congress repeal a statutory provision,

Act of October 6, 1917" (i.e., TWEA).1 0 4 The

threatening that "in the event that Congress

should fail to act, and act adequately, I shall

act further appropriated $2 million, "which

accept the responsibility, and I will act."113

shall be available for expenditure, under the

direction of the President and in his discre-

Thus, not only did Roosevelt claim the power

tion, for any purpose in connection with the

to act contrary to statute, he also asserted the

carrying out of this Act."1 0 5Thus, the act not

dictatorial right to unilaterally supersede a

law.

only gave the president (and Treasury secre-

16