«HARVARD LAW REVIEW A PRESIDENTIAL LEGAL OPINION Robert H. Jackson* T article by Robert W. Ginnane on The Control of Federal HE Administration by ...»
While it was referred to as an "official" opinion, it neither required nor prohibited any departmental official action, and bound no one officially. Despite the high official position of its author, it was not an official act but a personal explanation and opinion of Franklin D. Roosevelt on a smouldering issue between the Executive and Congress. It had not, and it was hard to see how it could, become a litigated issue, but it was very likely to become a political one. Why he did not consider his own files appropriate for it I never learned.10 If put in the open files of the Department of Justice, there was no assurance and little probability that so unique and politically explosive a document would not promptly ''leak," to his embarrassment: If sealed and put in a confidential and secret file, who, in the mutations of office, would know of it and decide when it should be brought to light? And, anyway, there was no established routine for publication of documents of the kind other than official opinions of the Attorney General I took both documents to the next Cabinet meeting and, after its close, put the problem back to him.
As Mr. Ginnane has pointed out/1 thereafter President Roosevelt approved a series of acts containing, in substance, the provision which he had thus pronounced unconstitutional. Its acceptHis files contain the memorandum of March 17, I94I, requesting preparation of the opinion which has now been published. 2 F. D. R.., His PERSONAL LEnERs, 1928-1945 II33 (Roosevelt ed. xgso). Absence from that publication of the later opinion and memorandum indicates, I assume, that they are not in his files.
11 Ginnane, supra note I, at ssg-go.