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«HARVARD LAW REVIEW A PRESIDENTIAL LEGAL OPINION Robert H. Jackson* T article by Robert W. Ginnane on The Control of Federal HE Administration by ...»

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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 'often he did with questions for which he had no ready answer, he took refuge in pleasantries- such as, was not an opinion rendered by the President to the Attorney General as much entitled to publication as those rendered by the Attorney General to the President? When he finally settled down to the problem, it was only to give me responsibility but not guidance•. He was hard pressed by much more immediate and important matters; bow this should be handled was a matter of. detail, and he brushed it aside by saying that he left it entirely to me to keep it so that it would not get out to embarrass him in the running controversy over his emergency powers but when I thought it ought to be made known to put it out in some appropriate way.

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.

PRESIDENTIAL LEGAL OPINION

1953] ance no doubt eased the path to enactment of his wartime legislation. But from his earnestness in discussing this practice with me, I know he regarded it as a triumph of expediency over principle. When Mr. Ginnane's article evidenced serious, scholarly, and nonpolitical interest in the validity of this device and its effect on the balance of power between Congress and the Executive, I was confident President Roosevelt would have expected me to contribute to its consideration the lesson he drew from an unparalleled experience with the functioning of our constitutional institutions.



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