Yoo on FDR and Presidential Power

John Yoo, University of California at Berkeley School of Law, has posted Franklin Roosevelt and Presidential Power, which is forthcoming in the Chapman Law Review (2018):

FDR on the USS Indianapolis, 1934 (LC)

This paper addresses current debates over the scope of executive power by examining the presidency of Franklin D. Roosevelt. While FDR did not have a theory of executive power on a par with those of Alexander Hamilton or Abraham Lincoln, he took full advantage of precedents from times of past national emergencies to advance his policies. In this respect, he set the model for the presidents of the postwar era. The paper illustrates this argument by examining FDR's use of presidential power in three distinct areas: domestic policy, foreign policy, and civil liberties in a time of war. To confront the Great Depression, FDR reimagined the role of the administrative state, defended his right to interpret the Constitution independently, and pushed the federal government to provide for economic security. This required directly challenging, or, at times, ignoring the commands of Congress and the Supreme Court. Faced with the existential threats of Nazi Germany and Imperial Japan, FDR acted with even greater resolve and independence despite laws barring U.S. involvement in World War II. While FDR brushed aside civil liberties objections to electronic surveillance, the military trial of Nazi saboteurs, and the internment of Japanese-Americans, the other branches of government ultimately supported his policies. FDR's expansive interpretation of executive power demonstrated that the Presidency may be better suited to act first during periods of national crisis, but that the other branches can exercise their own constitutional authority if they wish to check it. The consequences, however, seem clear: FDR's willingness to press the limits of executive power proved vital to the nation's success in overcoming World War II.