William Howard Taft: Limited Presidential Power

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      Theodore Roosevelt, in his Autobiography (1913), discussed the presidential office in terms of what he called Buchanan Presidents and Lincoln Presidents. The former category included those whose strict constitutional view led them to exercise power with undue restraint. Lincoln Presidents, on the other hand, had used the office to its fullest extent, yet within the authority of the Constitution. Roosevelt, who no doubt put himself in the Lincoln camp, regarded his successor (whose nomination Roosevelt had dictated) as a Buchanan President, and strongly criticized Taft's conduct in office. In a series of lectures delivered at Columbia University in 1915 and 1916, former President Taft answered Roosevelt's arguments with his own view of the office.

      The true view of the executive functions is, as I conceive it, that the president can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as proper and necessary to its exercise. Such specific grant must be either in the federal Constitution or in an act of Congress passed in pursuance thereof. There is no undefined residuum of power which he can exercise because it seems to him to be in the public interest. . . . The grants of executive power are necessarily in general terms in order not to embarrass the executive within the field of action plainly marked for him, but his jurisdiction must be justified and vindicated by affirmative constitutional or statutory provision, or it does not exist.

      There have not been wanting, however, eminent men in high public office holding a different view and who have insisted upon the necessity for an undefined residuum of executive power in the public interest. They have not been confined to the present generation. We may learn this from the complaint of a Virginia statesman, Abel P. Upshur, a strict constructionist of the old school, who succeeded Daniel Webster as secretary of state under President Tyler. He was aroused by Story's commentaries on the Constitution to write a monograph answering and criticizing them, and in the course of this he comments as follows on the executive power under the Constitution:

      The most defective part of the Constitution beyond all question, is that which related to the Executive Department. It is impossible to read that instrument without being struck with the loose and unguarded terms in which the powers and duties of the President are pointed out. So far as the legislature is concerned, the limitations of the Constitution are, perhaps, as precise and strict as they could safely have been made; but in regard to the executive, the convention appears to have studiously selected such loose and general expressions as would enable the President, by implication and construction, either to neglect his duties or to enlarge his powers.

      We have heard it gravely asserted in Congress that whatever power is neither legislative nor judiciary is, of course, executive, and, as such, belongs to the President under the Constitution. How far a majority of that body would have sustained a doctrine so monstrous and so utterly at war with the whole genius of our government it is impossible to say, but this, at least, we know, that it met with no rebuke from those who supported the particular act of executive power, in defense of which it was urged. Be this as it may, it is a reproach to the Constitution that the executive trust is so ill-defined as to leave any plausible pretense even to the insane zeal of party devotion for attributing to the President of the United States the powers of a despot, powers which are wholly unknown in any limited monarchy in the world.

      The view that he takes as a result of the loose language defining the executive powers seems exaggerated. But one must agree with him in his condemnation of the view of the executive power which he says was advanced in Congress. In recent years there has been put forward a similar view by executive officials and to some extent acted on. Men who are not such strict constructionists of the Constitution as Mr. Upshur may well feel real concern if such views are to receive the general acquiescence. Mr. Garfield, when secretary of the interior under Mr. Roosevelt, in his final report to Congress in reference to the power of the executive over the public domain, said:

Full power under the Constitution was vested in the executive branch of the government and the extent to which that power may be exercised is governed wholly by the discretion of the executive unless any specific act has been prohibited either by the Constitution or by legislation.

      In pursuance of this principle, Mr. Garfield, under an act for the reclamation of arid land by irrigation which authorized him to make contracts for irrigation works and incur liability equal to the amount on deposit in the Reclamation Fund, made contracts with associations of settlers by which it was agreed that if these settlers would advance money and work, they might receive certificates from the government engineers of the labor and money furnished by them, and that such certificates might be received in the future in the discharge of their legal obligations to the government for water rent and other things under the statute. It became necessary for the succeeding administration to pass on the validity of these government certificates.

      They were held by Attorney General Wickersham to be illegal on the ground that no authority existed for their issuance. He relied on the Floyd acceptances in 7th Wallace, in which recovery was sought in the Court of Claims on commercial paper in the form of acceptances signed by Mr. Floyd when secretary of war and delivered to certain contractors. The Court held that they were void because the secretary of war had no statutory authority to issue them. Mr. Justice Miller, in deciding the case, said:

The answer which at once suggests itself to one familiar with the structure of our government, in which all power is delegated, and is defined by law, constitutional or statutory, is that to one or both of these sources we must resort in every instance. We have no officers in this government, from the President down to the most subordinate agent, who does not hold office under the law, with prescribed duties and limited authority. And while some of these, as the President, the legislature, and the judiciary, exercise powers in some sense left to the more general definitions necessarily incident to fundamental law found in the Constitution, the larger portion of them are the creation of statutory law, with duties and powers prescribed and limited by that law.

      In the light of this view of the Supreme Court, it is interesting to compare the language of Mr. Roosevelt in his Notes for a Possible Autobiography on the subject of "Executive Powers," in which he says:

      The most important factor in getting the right spirit in my administration, next to insistence upon courage, honesty, and a genuine democracy of desire to serve the plain people, was my insistence upon the theory that the executive power was limited only by specific restrictions and prohibitions appearing in the Constitution or imposed by Congress under its constitutional powers. My view was that every executive officer and, above all, every executive officer in high position was a steward of the people, bound actively and affirmatively to do all he could for the people and not to content himself with the negative merit of keeping his talents undamaged in a napkin. I declined to adopt this view that what was imperatively necessary for the nation could not be done by the President unless he could find some specific authorization to do it.

      My belief was that it was not only his right but his duty to do anything that the needs of the nation demanded unless such action was forbidden by the Constitution or by the laws. Under this interpretation of executive power I did and caused to be done many things not previously done by the President and the heads of the departments. I did not usurp power but I did greatly broaden the use of executive power. In other words, I acted for the common well-being of all our people whenever and in whatever measure was necessary, unless prevented by direct constitutional or legislative prohibition.

      I may add that Mr. Roosevelt, by way of illustrating his meaning as to the differing usefulness of Presidents, divides the Presidents into two classes and designates them as "Lincoln Presidents" and "Buchanan Presidents." In order more fully to illustrate his division of Presidents on their merits, he places himself in the Lincoln class of Presidents and me in the Buchanan class. The identification of Mr. Roosevelt with Mr. Lincoln might otherwise have escaped notice, because there are many differences between the two, presumably superficial, which would give the impartial student of history a different impression.

      It suggests a story which a friend of mine told of his little daughter Mary. As he came walking home after a business day, she ran out from the house to greet him, all aglow with the importance of what she wished to tell him. She said, "Papa, I am the best scholar in the class." The father's heart throbbed with pleasure as he inquired, "Why, Mary, you surprise me. When did the teacher tell you? This afternoon?" "Oh, no," Mary's reply was, "the teacher didn't tell me — I just noticed it myself."

      My judgment is that the view of Mr. Garfield and Mr. Roosevelt, ascribing an undefined residuum of power to the President, is an unsafe doctrine and that it might lead under emergencies to results of an arbitrary character, doing irremediable injustice to private right. The mainspring of such a view is that the executive is charged with responsibility for the welfare of all the people in a general way, that he is to play the part of a universal Providence and set all things right, and that anything that in his judgment will help the people he ought to do, unless he is expressly forbidden not to do it. The wide field of action that this would give to the executive, one can hardly limit. . . .

      There is little danger to the public weal from the tyranny or reckless character of a President who is not sustained by the people. The absence of popular support will certainly in the course of two years withdraw from him the sympathetic action of at least one House of Congress, and by the control that that House has over appropriations, the executive arm can be paralyzed, unless he resorts to a coup d'état, which means impeachment, conviction, and deposition. The only danger in the action of the executive under the present limitations and lack of limitation of his powers is when his popularity is such that he can be sure of the support of the electorate and therefore of Congress, and when the majority in the legislative halls respond with alacrity and sycophancy to his will.

      This condition cannot probably be long continued. We have had Presidents who felt the public pulse with accuracy, who played their parts upon the political stage with histrionic genius and commanded the people almost as if they were an army and the President their commander in chief. Yet, in all these cases, the good sense of the people has ultimately prevailed and no danger has been done to our political structure and the reign of law has continued. In such times when the executive power seems to be all prevailing, there have always been men in this free and intelligent people of ours who, apparently courting political humiliation and disaster, have registered protest against this undue executive domination and this use of the executive power and popular support to perpetuate itself.

      The cry of executive domination is often entirely unjustified, as when the President's commanding influence only grows out of a proper cohesion of a party and its recognition of the necessity for political leadership; but the fact that executive domination is regarded as a useful ground for attack upon a successful administration, even when there is no ground for it, is itself proof of the dependence we may properly place upon the sanity and clear perceptions of the people in avoiding its baneful effects when there is real danger. Even if a vicious precedent is set by the Executive and injustice done, it does not have the same bad effect that an improper precedent of a court may have; for one President does not consider himself bound by the policies or constitutional views of his predecessors.

Source: William H. Taft, Our Chief Magistrate and His Powers, 1916, Ch. 6.

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