During the exceptional conditions of the Civil War, President Abraham Lincoln understood and respected the powers of Congress. It has never claimed exclusive, plenary or independent authority over military actions. When the insurgency began with Congress, he declared the militia, withdrew money from the treasury, deployed habeas corpus in various districts and imposed a blockade against insurgent states. But he did not claim the full authority to act as he did. On his return, on July 4, 1861, he declared that his actions, “strictly legal or not, were risky to a seemingly popular request and public necessity, and trusted Congress to ratify them willingly” (Richardson 1897-1925, Volume 7, 3225). This series of decisions was made because a judge, Owen Roberts, changed his voice. Since then, historians have been arguing over why he did it. We know that he changed his mind about the validity of the minimum wage laws for women before Roosevelt spread his message, so the FDR proposal could not be the obvious cause. As there is no archival evidence for its abrupt change in minimum wage cases, scholars have been reduced to speculation. Perhaps Chief Justice Hughes had warned his young colleague during a visit to Roberts` staff in Pennsylvania that the court would put itself in danger. Roberts may have been impressed by the dimensions of the FDR landslide, which indicated that the president, not the majority of the court, was speaking in favour of the nation. Perhaps he has been touched by the biting criticisms of the legal community. It is even more difficult to say why Roberts, in his subsequent votes in the Wagner Act and in social security affairs, supported such an expansion of federal power – but the pressure exerted by the bill could most likely be influential.

In the first century and a half of our constitutional history, the Supreme Court did not rule in favour of an independent or exclusive presidency in foreign affairs. He regularly acknowledged that Congress had explicit and tacit authority over war and foreign trade. Contractual power is vested in the Speaker and the Senate. In the event of a conflict between the military initiatives of the executive and the legal policy, it has prevailed. But with the United States versus Curtiss-Wright (1936), the Court approved the notion of presidential and exclusive rule in foreign affairs. This determination to elevate the president beyond Congress was based on a series of miscarriages of justice and misunderstandings that seriously undermined democratic principles, the system of separation of powers, control and balance, and constitutional government. Three days later, on February 5, 1937, Roosevelt shocked Congress, its closest advisers and the country with a thunderbolt. He asked Congress to allow him to appoint additional justice for each member of the court over 70 who has not retired. He tried to appoint up to six more supreme court justices as well as up to 44 judges in lower federal courts. He justified his application not by the fact that the majority of the court was reactionary, but by the assertion that a lack of judges resulted in delays in the trial parties because of the overload of the Federal Court docks.