"He cited a section of the 1917 Trading with the Enemy Act as justification. The act had never been formally repealed, but a body of legal theory held that the law, along with other wartime legislation, had expired upon the signing of the peace treaty with Germany in 1921."
FDR had asked the opinion of his as-yet-unconfirmed attorney general, Montana Sen. Thomas Walsh, who gave the answer FDR wanted. Walsh never had to defend this: He died March 2 en route to the inauguration.
The expansion of government entails an increasingly swollen executive branch and the steady enlargement of executive discretion. This inevitably means the eclipse of Congress and attenuation of the rule of law.
For decades, imperatives of wars hot and cold, and the sprawl of the regulatory state, have enlarged the executive branch at the expense of the legislative. For eight years, the Bush administration's "presidentialists"
have aggressively wielded the concept of the "unitary executive" -- the theory that where the Constitution vests power in the executive, especially power over foreign affairs and war, the president is immune to legislative abridgements of his autonomy.
The administration has not, however, confined its aggrandizement of executive power to national security matters. According to former Rep.
Mickey Edwards in his book "Reclaiming Conservatism," the president has issued "signing statements" designating 1,100 provisions of new laws -- more designations than have been made by all prior presidents combined -- that he did not consider binding on him or any other executive branch official.
Still, most of the administration's executive truculence has pertained to national security, where the case for broad prerogatives, although not as powerful as the administration supposes, is at least arguable. With the automakers, however, executive branch overreaching now extends to the essence of domestic policy -- spending -- and traduces a core constitutional principle, the separation of powers.
Most members of the House and Senate want the automakers to get the money, so they probably are pleased that the administration has disregarded Congress's institutional dignity. History, however, teaches that it is difficult for Congress to be only intermittently invertebrate.