In the aftermath of the imperial presidency, some historians and political scientists developed a revisionist critique of Franklin D. Roosevelt's destroyer deal, criticizing his claim and exercise of prerogative power to unilaterally exchange destroyers for leasing rights to British bases in the Western Hemisphere. They argued that the deal was a violation of international law, that it went beyond the Constitution, that it violated neutrality laws passed by Congress, that it took advantage of the British in a time of maximum peril. The purpose of this article is to examine two of these claims--that the president went beyond the Constitution and the laws. The destroyer deal was an exercise of prerogative power anticipated by the founders of the Constitution, and Roosevelt's policy was successful because it "normalized" prerogative, basing it on what presidency scholar Richard Neustadt referred to as "power stakes."
To most historians of diplomatic and military history President Franklin D. Roosevelt's willingness to conclude the destroyer deal with Prime Minister Winston Churchill (an exchange of 50 overage destroyers for leases to maintain naval bases on British possessions in the Atlantic and Caribbean) and take other actions against the Axis Powers was one of the greatest decisions ever taken by an American president. Arthur Schlesinger Jr. has argued,
In working it out, Roosevelt paid due respect to the written checks of the Constitution and displayed an unusual concern for the unwritten checks on presidential initiative. Though the transaction was unilateral in form, it was accompanied by extensive and vigilant consultation--within the executive branch, between the executive and legislative branches, among leaders of both parties, and with the press. (Schlesinger 1973, 108)
But not everyone agrees that the president had the constitutional and legal authority to make the deal. Roosevelt consummated the transaction through an executive agreement based on his reading of his constitutional powers, and he did so against the grain of several laws passed by Congress requiring that the United States maintain strict neutrality. Princeton constitutional law professor Edward Corwin claimed about the facilitating opinion provided to Roosevelt by Attorney General Robert Jackson that "no such dangerous opinion was ever before penned by an Attorney General of the United States" (New York Times, October 13, 1940, E6). Columnist Frank R. Kent, writing in his Wall Street Journal column "The Great Game of Politics," talked about "the ruthless sweeping aside of the constitution and dictatorial assumption of power" (Wall Street Journal, September 11, 1940, 6). The Wall Street Journal itself suggested in an editorial "By this road government in America approaches the political outskirts of Berlin" (Wall Street Journal September 5, 1940, 20). The journalist and historian, Robert Shogan, writing in the aftermath of Watergate, the Vietnam War, and the Iran-Contra affair, made the strongest critique:
In the interests of his country's security and of his own political ambitions, the President would find it necessary to twist the law, flout the Constitution, hoodwink the public, and distort the political process. Roosevelt's handling of the destroyer deal with the British would set a pernicious precedent. His machinations would give impetus and legitimacy to the efforts of his successors to expand the reach of their powers, overriding constitutional guidelines and political principles, all in the name of national security. (Shogan 1995, 17)
Roosevelt's destroyer deal took the form of an executive agreement rather than legislation or a treaty. While on its face Roosevelt' agreement was an exercise of unilateral presidential power relying on a White House interpretation of constitutional prerogative, a more fine-grained narrative indicates that it is also a case study of presidential power that may be understood through concepts developed by Richard Neustadt and now routinely applied by presidency scholars to the analysis of executive leadership: power stakes, reputation, and the distinction between the "professional" and the "amateur" in the Oval Office (Neustadt 1960, 1990). It is a case study of the politics of prerogative: of how a president may deploy formal powers to advance the task of persuading Congress and the nation to make a formidable national commitment. Roosevelt's prerogative power involved the normalization of extraordinary powers into alliance politics and legislative leadership--not the abandonment of politics.
On May 15, 1940, Winston Churchill, newly installed as prime minister of the United Kingdom, asked FDR for the loan of 40 or 50 destroyers. The deal was not consummated for more than three months. What took so long?
The need was obvious to both sides: the British had begun the war with 100 destroyers designated for protection of the Atlantic sea lanes, and by the fall of France in June about half had been destroyed. Roosevelt in a June 10 commencement address at the University of Virginia pledged, "We will extend to the opponents of force the material resources of this nation" (Meacham 2003, 60). On June 11 Churchill renewed his request for a six-month loan of 33 destroyers--with a right of recall if the United States needed them. After France surrendered to Germany on June 25, the United States began selling weapons to Britain: 80,000 Hotchkiss and Lewis machine guns, 500,000 Lee-Enfield rifles, and millions of bullets, one million tons each month of steel scrap, machine tools, and industrial chemicals. Yet still no destroyers.
Roosevelt understood the growing German naval threat: on June 14 he signed a naval expansion bill and then called for a two-ocean Navy with a new $4 billion supplemental budget request. On June 19 he put two "hawks" in his cabinet: Frank Knox replaced Charles Edison at Navy and Henry Stimson replaced Harry Woodring at War. FDR declared an "unlimited national emergency" and under statutory authority mobilized the economy and began spending some $17 billion Congress had appropriated for preparedness. These were measures for American security, but FDR did not accede to Churchill's urgent request. A Navy scheme to forego delivery of newly constructed torpedo boats and sub chasers and allow the contractor to sell them to the British was blocked by the administration when Attorney General Robert Jackson warned that the sale would violate a 1917 law that prohibited fitting out and arming vessels for a belligerent. (Jackson 2003, 94) Another month passed, and on July 29 the desperate prime minister got his cabinet to agree to offer the U.S. Navy landing and docking rights on three of the British Caribbean colonies. Two days later he cabled FDR: "I cannot understand, with the position as it is, you do not send me at least 30 or 60 of your oldest destroyers," adding, "Mr. President, with great respect I must tell you that in the long history of the world this is a thing to do now" (Meacham 2003, 70-71).
Throughout these months FDR called for terms that Churchill could not accept--and vice versa. Churchill did not propose an exchange of bases for destroyers, because that would be a "deal" Instead, he proposed gift-giving between friends. Churchill needed to protect himself in the House of Commons: if this were to be a trade, deal, bargain, or exchange of bases for destroyers, the British were clearly getting the worst of it. And so he insisted that the Bermuda and Newfoundland bases be gifts to the United States, "generously given and gladly received" (Sherwood 1948, 175). In return he would gladly receive the U.S. gift of destroyers. "But what Winston can't get is that even if I had the legal power, it would not be politically possible now just to make a gift of these destroyers," Roosevelt told Attorney General Jackson in June. (Jackson 2003, 90) FDR wanted it to be presented as a deal and as one in which the American side gained advantages.
There was another issue: the destroyers could fall into the hands of the German fleet if the British were forced to surrender--much as had happened with the French fleet. Churchill himself warned of the possibility in several cables to President Roosevelt in June, hoping to gain a quick decision on the destroyers and a general commitment of American support (Kennedy 1999), His cables elicited the opposite reaction: the president wanted assurances that the destroyers would never be surrendered. A visit to the White House by a delegation of establishment figures from the Century Association of New York City (a private club whose members included the likes of Henry Luce, Joseph Alsop, Dean Acheson, and Allen Dulles) suggested a way forward. On August 1, the "Century Group" suggested to FDR that he extract a promise from Churchill never to surrender the ships or the rest of the British fleet to Germany.
But what kind of public pledge would be acceptable to the United States? From Churchill's point of view, it would be difficult in the midst of the Battle of Britain for him to make a statement that "would publicly suggest that he was considering even the remote possibility of surrender" (Jackson 2003, 90). Churchill had to thread the needle; he had to emphasize British vulnerability in order to obtain American aid, but he also had to deny that the cause was hopeless, lest the Americans write his nation off. "Then and throughout the negotiations," Attorney General Jackson recalled, FDR feared Britain "might be tempted or driven to bargain for peace by a surrender of her navy, which would assure Hitler mastery of the seas" (Jackson 2003, 84). But throughout the summer Churchill held off on the commitment FDR wanted.
As late as his August 1 meeting with the Century Group, Roosevelt still had not committed to selling or lending destroyers to the British. There seemed to be an impasse between Roosevelt and Churchill based on each leader's assessment of his own political risks. After transferring some arms and artillery to the British in June, FDR had faced considerable opposition from his military chiefs, who advised him to concentrate on building up American forces. (Kennedy 1999) But on August 2, spurred by a new assessment from U.S. attaches in London of the British ability to hold off the Germans (British Spitfires and Hurricanes were defeating the Luftwaffe's fighters by a two to one margin), FDR held a cabinet meeting at which a consensus was formed that destroyers were necessary for the British and that with them they stood a fair chance of resupplying themselves in the Atlantic sea lanes and holding off the Germans. With Secretary of the Navy Knox taking the lead, the cabinet talked now of acquiring 99-year air and naval leases for bases on British territory as part of an exchange of assets.
The British were game: on August 4 Her Majesty's Ambassador Lord Lothian called on Secretary of State Cordell Hull and formally offered leases (Jackson 2003). On August 13 FDR had the State Department cable a proposed deal to Churchill: the bases the British would lease could be split into two groups, with Churchill making a gift of one group of leases, and Roosevelt trading destroyers for the other. Churchill could emphasize a generous gift to the Americans and a gain of vital naval assets; Roosevelt could emphasize a sharp deal that advantaged the Americans. Even so, on August 22, a week after the largest air combat in the Battle of Britain, Churchill tried one last time to force his preferred construction of the arrangement upon the president. He was still opposed, he cabled, to any "deal." After a final Roosevelt rebuff, the prime minister finally acquiesced. He later wrote that, though it was "not exactly a convenient statement for me," FDR had been "drawn to present the transaction to his fellow countrymen as a highly advantageous bargain" (Meacham 2003, 71).
At last, on September 2, 1940, letters constituting an executive agreement were exchanged between Secretary Hull and Lord Lothian. And at that time FDR received a final commitment from Churchill that the ships would never be surrendered. Lord Lothian delivered a short note to Secretary of State Hull, after Hull "respectfully inquired" if a declaration Churchill had made in Parliament in June that the British fleet would never be sunk or surrendered "represents the settled policy of the British government." The note Lothian delivered to Hull, just after the president announced the deal, specified, "this statement certainly does represent the settled policy of His Majesty's Government." Churchill could not resist putting in the tart comment that the question of surrender "seems more likely to concern the German fleet or what is left of it than our own" (Meacham 2003, 72).
American Navy crews took 50 overage destroyers (and 10 other small vessels) that had been in mothballs for two decades to Halifax Harbor, Canada, where they were transferred to British crews on September 9, 1940, along with other weapons and materiel, in return for 99-year leases on several Caribbean and other naval bases: Newfoundland, Bermuda, Bahamas, Jamaica, St. Lucia, Trinidad, and British Guiana. The deal was transmitted by the president to Congress the next day for its information, but it was never authorized by law or consented to by the Senate. As for Churchill, in a speech in the House of Commons a few days later, he characterized the "exchanges" as "simply measures of mutual assistance rendered to one another by two friendly nations in a spirit of confidence, sympathy and goodwill" (Los Angeles Times, September 5, 1940, 6). Churchill jubilantly characterized the agreement as "a decidedly unneutral act by the United States" (Reynolds 2001, 87). Churchill was decidedly correct. In the destroyer deal, FDR concluded a de facto alliance with the British and did so by circumventing the Senate treaty power. In the process, the United States gave up its de facto if not de jure neutrality; it remained a nonbelligerent, but it no longer could be said to be neutral.
"That Destroyer arrangement seems to have worked out perfectly," FDR wrote to King George VI after his reelection, adding "There is virtually no criticism in this country except from legalists who think it should have been submitted to the Congress first. If I had done that, the subject would still be in the tender care of the Committees of the Congress" (Shogan 1995, 259).
Congressional inaction, bordering on paralysis, and its passage of various neutrality acts, form the backdrop to the decisions that Roosevelt took to implement the destroyer destroyer deal unilaterally, as an exercise of the prerogative power of the president to conclude executive agreements with foreign governments. As early as 1933 FDR had requested legislation that would have permitted him to embargo arms sales to aggressors but permit sales to victims of aggression. Instead, Congress passed the Neutrality Act of 1935 (the first of a series of Neutrality Acts passed from 1935 through 1939), instructing the president to declare at his discretion an embargo against all belligerents. A law Congress passed in 1936 required an arms embargo against all third parties entering hostilities and forbade loans to belligerents (including private loans), as well as entry of U.S. ships into war zones. By joint resolution Congress triggered these provisions during the Spanish Civil War, which applied to the aggressors and the victims of aggression alike.
In 1937 Roosevelt called for quarantine against aggressors. The Chicago Tribune, controlled by the Anglophobe publisher Robert "Colonel" McCormick, called him a warmonger. In 1938 Roosevelt called for a huge naval construction program and creation of a large air force. Congress refused. After the Germans annexed all of Czechoslovakia in 1939, Roosevelt asked Congress to repeal the Neutrality Act of 1935, and this time Congress did act, allowing arms purchases by belligerents, but requiring the purchaser to take possession of the goods in the U.S. ports, and then to ship them so that no American ships would ply belligerent waters--"cash and carry." In March 1940 FDR proposed a program of lend-lease assistance to the allies. (Lend-lease was a way around the fact that as a belligerent the British could not be extended loans under the Neutrality Act of 1939, and as a defaulting debtor nation from World War II, it was ineligible for loans under the Johnson Act of 1934.) Once again Congress took no action on FDR's request.
After the fall of France, Roosevelt began to take further actions to ensure American security without waiting for congressional authorization. By the Act of Havana, a multilateral pact agreed to by the nations of the Western Hemisphere in July 1940, the United States was committed to the defense of the hemisphere against Axis powers. FDR implemented this commitment as an executive agreement, not requiring Senate consent. Within the framework of the Pan American Union it provided for the creation of provisional governments in Latin America for the French possessions, in order to keep them out of the hands of the pro-Nazi Vichy regime. It also prevented the transfer of Dutch (and in the worst case British) possessions to puppet governments in Nazi occupied nations. In August 1940 Roosevelt implemented an executive agreement with Prime Minister McKenzie King of Canada, giving the United States and Canada access to each other's defense facilities, and creating a Permanent Joint Board of Defense.
But for Roosevelt to sell or lend destroyers to the British, he would have to find a way to evade two laws that seemed to forbid such a sale. One was a law passed before United States entry into World War I, prohibiting the sale of warships to belligerent powers. The other was more recent: on June 28 Congress had provided in the Walsh Amendment to the Naval Expansion Bill that the Chief of Staff (George Marshall) or the Chief of Naval Operations (Harold Stark) would have to certify that any military equipment transferred to another nation was "not essential to the defense of the United States." This could present a serious problem, since Admiral Stark had recently testified in Congress that the destroyers were essential, after Congress complained that he was wasting money keeping the ships in mothballs.
Until late August the president seemed intent on confronting these and related problems head on in a bid for explicit congressional approval. On August 2, after a cabinet meeting discussed the transfer of ships, Roosevelt wrote up a memo of the meeting, noting that all present agreed "legislation was necessary to accomplish any sale." (Jackson 2003, 88) As late as August 14 Stimson told Lord Lothian that an exchange would be "an attractive proposition for the President to make to the Congress." And on August 17th Knox declared that it was for Congress to decide (Jackson 2003, 92).
At some time near the end of August, the president decided to rely instead on prerogative powers. FDR decided, one might say, that the presidential prerogative to "take care" that the laws be faithfully executed meant that the laws should be executed based on his interpretation of their meaning. He made this decision with the support of Attorney General Robert Jackson, whose drafting of legal opinions on the issues involving neutrality laws the president carefully supervised.
In the process of writing his own formal opinion of the attorney general on the proposed transaction, Jackson received and interpreted opinions from other administration attorneys and consulted closely with the president. Thus on August 15 he read opinions from the legal counsel at State and Justice holding that the destroyers could be transferred as part of an exchange of assets without violating domestic or international law. The following day he briefed the president on the reasoning of the departmental counsel. According to Jackson, the president had the power, as commander in chief, not only to dispose the Armed Forces, but also to dispose of them. (Jackson 1940) He referred to the "plenary powers of the President as Commander-in-Chief of the Army and Navy and as head of state in its relations with foreign countries," which is the language of prerogative applied to diplomatic agreements. He then interpreted the prohibitions of the 1917 law narrowly, claiming it referred only to the transfer of ships built for a belligerent power, even though a close reading of the intent of Congress when it drafted the law showed that Congress had meant to prevent the sending out of any warships to a belligerent power, and it had not been restricted to ships constructed for them.
Jackson also found a way around the Walsh Amendment. What was "essential" was the defense of the United States, and the exchange of destroyers could be used to facilitate that essential function: "To exchange them for bases would give us far more than their equivalent in actual defense facilities," Jackson argued. "On this basis, it seemed to me, the Chief of Naval Operations could certify that the destroyers were 'not essential to the defense of the United States,' and thus the transaction would conform to the conditions of the Act of June 28, 1940" (Jackson 2003, 97). Subsequently Admiral Stark certified that "on balance" the exchange of destroyers for bases meant that they were not essential for the U.S. Navy, since the security of the United States would be enhanced by the acquisition of bases. Other naval officers, such as Rear Admiral Clark Howell Woodward, commandant of the New York Navy Yard, quickly fell into line speaking on the record to newspapers.
Leasing rather than obtaining title to the land in the exchange would clearly minimize Congress's role, as there would be no formal expansion of American territory abroad. Jackson's memo addressed this issue in the process of arguing that no treaty was required. Not only would the United States not acquire new possessions in the deal, the agreement involved a single act, with no further obligation on either party that would require a treaty. (International law, going back to the legal theorist Emerich de Vattel, recognizes a distinction between an agreement with continuing commitments requiring a treaty, and an agreement with no further obligations that does not.)
This claim was disingenuous: the agreement did require future commitments and discharge of obligations; there was the British commitment that it would never surrender the ships to the Germans, even in the event of a British surrender. The Americans would have to call upon the British to assist them in negotiations with private landowners on easements and rights of way for access to shorelines--a process in that the British government had to intervene in Newfoundland, Bermuda, and the West Indies, by taking over the responsibility for compensating owners of private property for loss by expropriation or damage, which became an ongoing commitment of millions of pounds. As part of the agreement, U.S. and British experts in underwater detection systems cooperated in fitting the ships with American sonar and British Asdic systems. Airbases on the leased land would be used jointly by British and American warplanes, and there were provisions for joint training exercises. The United States would use British docks, shops, and repair facilities, and pay for excess wear and tear. Near the end of the war, the British agreed that air bases in Newfoundland and Labrador would be made available for postwar use by American commercial airlines for transatlantic flights, and in 1948 the same arrangement was made for airbases in the West Indies. The destroyer deal was in fact part of an ongoing set of relationships, fast becoming an alliance, between the two nations.
For the most part, Roosevelt and Jackson dealt only with constitutional and statutory law, and not with international law, though both men believed that the aggressor nations had forfeited the right that international law bestowed upon belligerents in insisting that other nations remain neutral. Some of the learned authorities in international law subsequently argued that the deal violated customary international law, particularly obligations of neutrals under the Hague Convention of 1906. Opponents of the deal also claimed it violated the declaration adopted by the Pan American Convention in October 1939, in which the states of the Western Hemisphere pledged that they would work against "the fitting out, arming, or augmenting of the forces or armament of any ship or vessel to be employed in the service of one of the belligerents to cruise or commit hostilities against another belligerent or its nationals or property." On August 26, John Danaher, Republican Senator from Connecticut, declared that if the destroyers were turned over to the British, "the United States will be in the war" (Chicago Tribune, August 26, 1940, 1).
By that point, though, Roosevelt was no longer heeding such warnings. He had reviewed Jackson's final opinion in detail, submitted it to an approving cabinet, and was ready to move forward. He seemed confident of Congress's acquiescence. As he had jokingly observed to Jackson, referring to isolationist members of Congress, "They will get into a terrific row over your opinion instead of over my deal, but after all, Bob, you are not running for office" (Jackson 2003, 99).
The president announced the deal first to the press, summoning reporters to the sitting room of the private car of his train over the Labor Day weekend, outside of South Charleston, West Virginia.
In answer to a question about whether congressional approval would be required, the president first highlighted for reporters that he was relying on the opinion of the attorney general and then stated simply "It is all over; it is all done" (Roosevelt 1940). The president then sent a message to Congress--on a day when the Senate was not in session--stating that the text of the agreement, and the attorney general's opinion, were being transmitted "for the information of the Congress," not for its deliberations or approval. In late March 1941 he sent a copy of a subsequent 41-page contract implementing the deal that the War and Navy Departments and the State Department had negotiated with the British, again for congressional information rather than approval.
Roosevelt's destroyer deal was the tip of the iceberg, representing only one step in the president's creation of a protective cordon of naval bases around the United States and the projection of naval power in the Atlantic. In December 1940 the United States announced a destroyer deal with Mexico: 20 overage destroyers were transferred to that nation after its newly inaugurated president, Avila Camacho, promised cooperation in Pan-American defense. In return, the United States gained leases to 12 Mexican bases on both the Caribbean and Pacific coasts. An executive agreement signed with the Danish minister to the United States in April 1941 allowed American forces to occupy Greenland, and in July the United States took over the defense of Iceland. Both measures allowed the United States to protect shipping lanes to the United Kingdom. In September 1941 FDR ordered the Navy to "sink on sight" any German naval vessels near British convoys, and the following month he extended the order to ships anywhere in the Atlantic. Although the lend-lease law Congress eventually passed prohibited the U,S, Navy from convoying ships, Roosevelt ordered the Navy to institute "neutrality patrols" and placed these near the British convoys, claiming they sailed near them but not with them--a meaningless distinction to soften a policy that skirted if not directly transgressed statutory law.
Roosevelt guarded his power stakes throughout the summer so that the destroyer deal would boost his domestic political position and increase his chances for reelection in November. William Allen White, Republican editor of the Emporia, Kansas, Gazette met with Roosevelt to discuss the question of selling destroyers on June 29, and after listening to Roosevelt explain why he could not act, told the president that he "had lost his cud." White warned FDR "you will not be able to lead the American people unless you catch up with them" (Divine 1965, 91). FDR encouraged White to guard his flank. White's newly formed Committee to Defend America by Aiding the Allies (CDA) established 600 chapters to get local opinion leaders to back a pro-British policy and counter the isolationist appeals of Charles Lindbergh's America First Committee, which was far less organized than the interventionists. (Namikas 1999)
The CDA sponsored radio addresses, including a key speech on August 4 by the hero of World War I, General John Pershing, who promised "If the destroyers help save the British fleet, they may save us from the danger and hardship of another war" (Divine 1965, 90). This was followed on August 9 by Admiral William H. Standley, a retired chief of naval operations, who in another nationwide radio address sponsored by CDA urged Congress to declare a state of emergency and sell destroyers to Britain (Chicago Daily Tribune, August 11, 1940, 10) By the end of the summer, public opinion in some polls was as much as 73% in favor of making the deal (Divine 1965, 91, Langer and Gleason 1952).
A professional president, according to Richard Neustadt, defines problems in terms of his power stakes: the ability to see ahead, to preserve options, and to make decisions that boost his chances of mastery tomorrow by what he does today. Indeed the professional president defines the policy itself in terms of his power stakes. And so FDR was careful to define the arrangement as a deal in which he had gotten the better of the British. Neustadt also emphasizes that only the president can know his power stakes, and therefore the incumbent has every incentive to guard them by taking charge and understanding all the details. Roosevelt himself was the negotiator in chief. The Navy at one point was negotiating a cession in which the United States would become sovereign on the islands. But Roosevelt overruled the negotiators and made sure there was no sovereignty clause but only leases. Since the bases would not be on American soil, he would not have to deal with southern senators insisting that racial segregation be instituted in the territories or with restive local people demanding an end to colonial rule and chafing under the institution of restrictive American racial codes. If the islands had been ceded, their agricultural products would have been exported to the U.S. mainland duty free, but if they remained under British sovereignty, they would remain subject to U.S. tariffs. (Jackson 2003) Both issues, had they been handled incorrectly, would have opened up rifts within the Democratic Party between its northern liberal and southern conservative wings.
When Roosevelt decided, in the last weeks of August, to act unilaterally and to base his decision on prerogative power, he did so because of a power-stakes analysis: he had to protect himself from the possibility of Republican obstruction as well as the probability of a split within his own Democratic Party. At Roosevelt's behest, William Allen White went to see Wendell Willkie, the Republican presidential nominee, and asked him to support the president if there were a destroyer deal. Willkie represented the rising internationalist wing of the Republican opposition, and he told White that he would agree not to make it an issue in the upcoming campaign. Secretary of State Cordell Hull later recalled that Willkie "agreed in principle with our methods for aiding Britain." (Jackson 2003, 92) But Willkie's promise was not good enough for Roosevelt. What he wanted was Willkie's commitment to help convince Republican leaders in Congress to back the deal. White was unable to get Willkie to give the president such a commitment.
Nor could FDR obtain strong support from Democrats when he sounded them out about passing a law authorizing the deal. When the president had Senator Josh Lee (D-Oklahoma) sound out sentiment in the chamber in mid-August, Lee reported back that the mood of the Senate was hostile (Chicago Daily Tribune, August 15, 1940, 3). Senator Burton Wheeler (D-Montana), suggested canceling British war debts in return for bases but indicated over the summer that he was concerned that the president might instead decide to transfer destroyers--a deal he opposed. Senator Millard Tydings (D-Maryland), a member of the Naval Affairs Committee that would have jurisdiction over any legislation that would be sent by the White House, indicated that sale of warships would be an act of war, and that if we wanted to send ships, we should send "the whole fleet, and we ought to declare war" (New York Times, August 18, 1940, 1). Yet FDR also calculated that he could neutralize much of the Democratic congressional opposition, because the isolationist wing had been adamant that the government expand its defenses of the East and West coasts against the German Navy. The bases to be acquired would meet their demands for coastal defense (Langer and Gleason 1952). He exchanged several letter with Senator Walsh in an attempt to neutralize his opposition to the deal.
Because he had no guarantee of Republican backing if he introduced legislation, and could count at best on lukewarm support within his party, Roosevelt decided to act unilaterally: implicitly he took the Hamiltonian position that the prerogative was embodied in his constitutional powers rather than the Jeffersonian position that some exercises of prerogative power might be extraconstitutional but necessary to meet the exigencies of an emergency (Fatovic 2004). Once Roosevelt announced the deal, Willkie tried to have it both ways: he attacked on the substance, claiming that the deal did not provide enough aid to the British, a position designed to appeal to interventionists. But he also sought to win favor from the isolationists, as he condemned the fact that FDR "did not deem it necessary, in connection with this proposal, to secure the approval of Congress or permit public discussion prior to its adoption," warning that "we must be extremely careful in these times, when the struggle in the world is between democracy and totalitarianism, not to eliminate or destroy the democratic processes while seeking to preserve democracy" (Chicago Daily Tribune, September 4, 1940, 6) And during a round table conference with almost 100 editors of Midwestern farming community newspapers, he charged that the president's decision to bypass Congress was "the most dictatorial and arbitrary of any President in the history of the U.S." (Chicago Daily Tribune, September 7, 1940, 8).
The decision was unilateral in form but highly political in fact--and was neither dictatorial nor arbitrary. FDR made the deal after bringing Henry Stimson and Frank Knox into his cabinet and after consulting fully with them, Secretary of State Cordell Hull, Attorney General Jackson, and the rest of the cabinet. Initially the members thought legislation would be necessary, but later they acquiesced in the president's decision to do it unilaterally, and in no sense was the policy a fair accompli for these officials, nor was it a policy decided upon against the cabinet's will. Members of the cabinet were involved in defining the transaction as a deal rather than as a girl, loan or sale. And they were very strongly involved in having the president get Willkie to go along with the deal. James Farley, the postmaster general and chairman of the Democratic Party, insisted that Willkie's promise to back the deal was essential. (Jackson 2003)
In form Roosevelt acted through his constitutional prerogatives, but in reality he had consulted Congress and obtained its acquiescence and its tacit consent. Senate minority leader McNairy (Willkie's candidate for vice president) told FDR that he would make no objection if the president came up with a method that would keep the Senate from having to vote. Joe Martin, House minority leader, also gave discrete support to the deal. Roosevelt similarly consulted with the Democratic congressional leaders. As soon as the deal was announced, they assured the president that they would take no negative action (Langer and Gleason 1952).
Opponents of the deal struck back as best they could. Representative Earl R. Lewis, (R-Ohio), introduced a resolution to request that the Judiciary Committee investigate legal aspects of the deal. Representative John M. Vorys, another Republican from Ohio, talked about impeachment if a criminal statute (the 1917 law) had been violated. Senator Walter George (D-Georgia) asked Democrats whether "it is the party that wants to stay within our Constitution--to pay decent respect to the simplest democratic processes--or whether we believe we should forget all these things because we believe that we are in danger" (Chicago Daily Tribune, September 11, 4). And Representative Martin Sweeney (D-Ohio) warned that if the American people "knew what was going on behind the scenes in Washington they would start a revolution--not to overthrow, but to preserve democracy" (Los Angeles Times, September 5, 1940, 4) But FDR's wide consultation throughout the government had paid off. The deal did not have many opponents, however vociferous the minority had been--and when Congress had its chance to check and balance the president through investigation, censure, or even impeachment, there was little support to be found.
On the contrary, after the deal was announced Congress appropriated funds to build the bases on the islands and passed other enabling legislation, including a provision to assume military control over West Indies islands if necessary to protect the new bases and American warships based there--demonstrating what constitutional lawyers refer to as "joint concord" after the fact. It appropriated more than $66 million for immediate construction of bases on the British islands; over the next two decades Congress appropriated more than $150 million for construction on the West Indies bases. Far from opposing what FDR had done, Congress facilitated the destroyer deal in every way possible.
Conclusion: Prerogative Normalized into Politics
In Richard Neustadt's classic formulation, when presidential persuasion fails, the president may determine issues by command, but the exercise of presidential powers demonstrates the failure of presidential power. While often a correct formulation, the destroyer deal represents a middle case, no doubt quite common in presidential-congressional relations, in which the president's failure to persuade the other party to take action is not the end of the story, because the president has received the signal that if he acts, opposition congressional and party leaders (such as Willkie) will not only acquiesce, but support him, especially when it comes to appropriating the funds for implementation. What appears to be unilateral action through prerogative power inform is actually joint concord in fact. (Thomas 2000) Rather than continue to dichotomize presidential power as resting upon prerogative or persuasion, it is better to think of both as two sides of the same coin of presidential power stakes, a process by which the occupant in the Oval Office comes to his understanding of all the ways in which a decision taken now will affect the range of options on other decisions to come. The idea of thinking about prerogative power as one of the instruments of presidential power stakes may appear to be the opposite of Neustadt's argument about presidential power, but it is consistent with his insight that however scholars may split up the roles of the president for analysis, in the Oval Office all roles come together.
It may be best to think of presidential action in diplomacy, war making, covert operations, and internal security affairs as lying along a continuum, from unilateralism to joint concord. At one end are the faits accomplis that have involved no prior congressional consultation or acquiescence and that are formulated and implemented secretly, such as Richard Nixon's diplomacy with China, or John F. Kennedy's decisions in the Cuban Missile Crisis, or Jimmy Carter's hostage rescue attempt, or Barack Obama's authorization for a covert operation against Osama bin Laden. In the middle is a case such as the destroyer deal, which involves extensive prior consultation and eventual acquiescence in the unilateral action, usually because Congress does not want to accept responsibility for authorizing a decision by law or treaty. And finally, there is the "soft" prerogative in which the president holds the possibility of unilateral action in abeyance, reserved in the deep recesses of legal briefs and opinion of counsel, while on the surface he asks for and receives broad delegations of power--such as the authorizations for two military operations against Iraq and an authorization for the War on Terrorism.
There are many occasions when presidents have relied on prerogative power to shape the course of American history. Washington did so in declaring neutrality with regard to the French and British in the 1790s; Jefferson did so in negotiating to purchase Louisiana; Lincoln did so in suspending the privilege of the writ of habeas corpus and making government purchases without congressional appropriation. When risks are great, when the survival of the nation is at stake, when there are opportunities that are fleeting, the "Mount Rushmore" leaders act first and seek congressional authorization later. Washington's neutrality was subsequently adopted by Congress when it passed an implementing law; Jefferson's acquisition of Louisiana was consented to by the Senate and funds appropriated by Congress; a series of Lincoln's unilateral actions against the Southern secessionists were retroactively authorized by an appropriations act when Congress convened. FDR's destroyer deal fits into this tradition. It involved a decision of supreme importance to preserve the idea of Western liberal democracy against a totalitarian aggressor bent on world domination; it also involved a decision of supreme importance in protecting the United States in the event that Hitler attained mastery over all of Europe. To be sure, Roosevelt acted as a "Neustadtian" president to preserve his own power stakes, but his decisions went far beyond the conservation of presidential power: they went to the very future of the Western democracies.
There are several pitfalls that presidents must surmount when they rely on prerogative power, and FDR's actions in the destroyer deal comprise a "how to manual" for success. While prerogative always involves the form of a fair accompli based on constitutional claims, the president is well served by relying on Neustadtian persuasion. A prerogative style works best when there is prior discussion within the cabinet, and when outside experts and opinion leaders are consulted, so that a consensus can form. This ensures that a collaborative psychology takes hold within the administration and that it emanates beyond, so that claims that the president is acting dictatorially and unconstitutionally may be refuted. While FDR's opponents questioned the legitimacy of what he had done, most did not question the policy itself. The American people tend to be pragmatic about presidential decision making; they are more likely to accept (or acquiesce in) the idea of an administration taking shortcuts with constitutional provisions or with the law if they believe that the policy will work.
President Roosevelt normalized prerogative power into politics. Normalization is used here in two senses: first, it means adhering to the norms of politics, which in this case meant consultation in fact even though the decision seemed a fait accompli in form. Second, it means normalization of risk, which can either involve a successful attempt to reduce risk (rational decision making) or else a willful decision to ignore risks (irrational decision making). In this case, the reduction of risk was rational: it involved presidential consultation with political opposition after the appointment of two Republicans to the key cabinet positions of War and Navy); overtures to the opposition would split it between interventionists and isolationists, thus providing the president with bipartisan political cover and preventing a united opposition against his policy. Normalization was also achieved by delaying the decision until after it was clear that the British would survive the Battle of Britain, that operation Sea Lowe (a projected invasion of the home islands) would not take place, and that providing destroyers and material to the British would not result in an American version of Dunkirk.
Rather than castigate Roosevelt for constitutional and statutory shortcuts, it is Congress that should be faulted for its irresponsibility in dealing with the gathering storm. Contrast FUR's decisive actions after the fall of France with the dithering of a Congress that lacked foresight, vision, or courage to confront the Nazis and Fascists in Europe. It took Congress a year to pass the lend-lease program FUR had sought at the start of the European conflict. A selective service act that had narrowly passed the House in 1940 (with some neutrality language attached even so) was almost repealed in August 1941, and barely survived by a vote of 203 to 202. A vote the other way would have left the nation defenseless. Construction funds for naval facilities in the Pacific were held up, and administration requests to procure advanced weapons were cut by Congress. It was not until the end of 1941, after Pearl Harbor, that the neutrality laws that had hobbled the president were repealed.
Presidential prerogative power was vindicated at the opening stages of the Second World War. The "frontlash" effect of successful exercise of prerogative power (combined with congressional acquiescence and joint concord) continued throughout the war and into the postwar period for two decades, reaching into the middle of the Vietnam War. In effect American foreign policy became a presidential prerogative as a reaction to presidential success, when contrasted with the pathetic congressional performance prior to Pearl Harbor. There are times when a president must act, if Congress will not and wishes to step aside. The destroyer deal was a great presidential moment, creating an Anglo-American alliance committed to stopping Axis aggression in Europe, an alliance that was essential if totalitarian forces were to be stopped and the promise of democratic governance was to continue in the twentieth century.
Bailey, Jeremy David. 2004. "Executive Prerogative and the 'Good Officer'." In Thomas Jefferson's Letter to John B. Colvin." Presidential Studies Quarterly 34 (4): 732-54.
Briggs, Barton. 1940. "Neglected Aspects of the Destroyer Deal." 34 American Journal of International Law 34 (4): 569-87.
Briggs, Philip J. 1994. Making American Foreign Policy: President-Congress Relations from the Second World War to the Post-Cold War Era. Lanham, MD: Rowman and Littlefield, 1994.
Borchard, Edwin. 1940. "The Attorney General's Opinion on the Exchange of Destroyers for Naval Bases." American Journal of International Law 34 (4): 690-97.
Cull, Nicholas John. 1995. Selling War: The British Propaganda Campaign against American "Neutrality" in World War II. New York: Oxford University Press.
Divine, Robert A. 1965. The Reluctant Belligerent: American Entry into World War II. New York: John Wiley and Sons, Inc.
Donovan, Hedley. 1940. "Pledge Not to Surrender Fleet Unique in Diplomacy." Washington Post, September 8.
Fatovic, Clement. 2004. "Constitutionalism and Presidential Prerogative: Jeffersonian and Hamiltonian Perspectives." American Journal of Political Science 48 (3): 429-44.
Jackson, Robert H. 2003. That Man: An Insider's Portrait of Franklin D. Roosevelt. New York: Oxford University Press.
Jackson, Robert. 1940. "Exchange of Destroyers for Bases, United States--United Kingdom," Op. A.G. 484, August 27. In Opinions of the Attorneys General.
Kennedy, David. 1999. Freedom from Fear. New York: Oxford University Press.
Kuhn, Jr., Ferdinand. 1940. "Our Aid for Britain is Large and Growing." New York Times, September 22, 1940.
Langer, William L., and S. Everett Gleason. The Challenge to Isolation, 1937-1940, vol. 2. New York: Harper.
Lash, Joseph P., 1976. Roosevelt and Churchill, 1939-1941. New York: W.W. Norton and Co.
Loewenheim, Francis, Harold D. Langley, and Manfred Jonas. 1975. Roosevelt and Churchill: Their Secret Wartime Correspondence. New York: Saturday Review/Dutton.
Meacham, Joe. 2003. Franklin and Winston: An Intimate Portrait of an Epic Friendship." New York: Random House.
Namikas, Lisa. 1999. "The Committee to Defend America and the Debate Between Internationalists and Interventionists, 1939-1941. The Historian, June 22.
Neustadt, Richard E. 1960. Presidential Power. New York: John Wiley and Sons.
--. 1990. Presidential Power and the Modern Presidents. New York: Free Press.
Reynolds, David. 2001. From Munich to Pearl Harbor. Chicago: Ivan R. Dee.
Roosevelt, Franklin D., 1940. "Press Conference on Board President's Train En Route to Washington, D.C.," September 3. In The American Presidency Project, eds. Gerhard Peters and John T. Woolley. http://www.presidency.ucsb.edu/ws/?pid=16003.
Schlesinger, Arthur, Jr. 1973. The Imperial Presidency (Boston: Houghton Mifflin).
Sherwood, Robert. 1948. Roosevelt and Hopkins: An Intimate History. New York: Harper and Brothers.
Shogan, Robert, 1995. Hard Bargain: How FDR Twisted Churchill's Arm, Evaded the Law and Changed the Role of the American Presidency. New York: Scribner.
Thomas, George, 2000. "As Far as Republican Principles will Admit: Presidential Prerogative and Constitutional Government." Presidential Studies Quarterly 30 (3): 534-52.
RICHARD M. PIOUS
Richard M. Pious is Adolph and Effie Ochs Professor at Barnard College and professor at Columbia University. His books include The President, Congress and the Constitution, The War on Terrorism and the Rule of Law, and Why Presidents Fail.