Theodore
Roosevelt An Autobiography (1913)
The most important factor in getting the right spirit in my
Administration, next to the 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 the 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 the 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
public welfare, I acted for the common well-being of all our people,
whenever
and in whatever manner was necessary, unless prevented by direct
constitutional
or legislative prohibition. I did not care a rap for the mere form and
show of
power; I cared immensely for the use that could be made of the
substance. The
Senate at one time objected to my communicating with them in printing,
preferring the expensive, foolish, and laborious practice of writing
out the
messages by hand. It was not possible to return to the outworn archaism
of hand
writing; but we endeavored to have the printing made as pretty as
possible.
Whether I communicated with the Congress in writing or by word of
mouth, and
whether the writing was by a machine, or a pen, were equally, and
absolutely,
unimportant matters. The importance lay in what I said and in the heed
paid to
what I said. So as to my meeting and consulting Senators, Congressmen,
politicians, financiers, and labor men. I consulted all who wished to
see me;
and if I wished to see any one, I sent for him; and where the
consultation took
place was a matter of supreme unimportance. I consulted every man with
the
sincere hope that I could profit by and follow his advice; I consulted
every
member of Congress who wished to be consulted, hoping to be able to
come to an
agreement of action with him; and I always finally acted as my
conscience and
common sense bade me act.
...
As to all action of this kind there have long been two
schools of
political thought, upheld with equal sincerity. The division has not
normally
been along political, but temperamental, lines. The course I followed,
of
regarding the executive as subject only to the people, and, under the
Constitution,
bound to serve the people affirmatively in cases where the Constitution
does
not explicitly forbid him to render the service, was substantially the
course
followed by both Andrew Jackson and Abraham Lincoln. Other honorable
and
well-meaning Presidents, such as James Buchanan, took the opposite and,
as it
seems to me, narrowly legalistic view that the President is the servant
of
Congress rather than of the people, and can do nothing, no matter how
necessary
it be to act, unless the Constitution explicitly commands the action.
Most able
lawyers who are past middle age take this view, and so do large numbers
of
well-meaning, respectable citizens. My successor in office took this,
the
Buchanan, view of the President's powers and
duties.
For example, under my Administration we found that one of the favorite
methods
adopted by the men desirous of stealing the public domain was to carry
the
decision of the Secretary of the Interior into court. By vigorously
opposing
such action, and only by so doing, we were able to carry out the policy
of
properly protecting the public domain. My successor not only took the
opposite
view, but recommended to Congress the passage of a bill which would
have given
the courts direct appellate power over the Secretary of the Interior in
these
land matters. This bill was reported favorably by Mr. Mondell, Chairman
of the
House Committee on public lands, a Congressman who took the lead in
every
measure to prevent the conservation of our natural resources and the
preservation of the National domain for the use of home-seekers.
Fortunately,
Congress declined to pass the bill. Its passage would have been a
veritable
calamity.
I acted on the theory that the President could at any time in his
discretion
withdraw from entry any of the public lands of the United States and
reserve
the same for forestry, for water-power sites, for irrigation, and other
public
purposes. Without such action it would have been impossible to stop the
activity of the land thieves. No one ventured to test its legality by
lawsuit.
My successor, however, himself questioned it, and referred the matter
to
Congress. Again Congress showed its wisdom by passing a law which gave
the
President the power which he had long exercised, and of which my
successor had shorn
himself.
Perhaps the sharp difference between what may be called the
Lincoln-Jackson and the Buchanan-Taft schools, in their views of the
power and
duties of the President, may be best illustrated by comparing the
attitude of
my successor toward his Secretary of the Interior, Mr. Ballinger, when
the
latter was accused of gross misconduct in office, with my attitude
towards my
chiefs of department and other subordinate officers. More than once
while I was
President my officials were attacked by Congress, generally because
these
officials did their duty well and fearlessly. In every such case I
stood by the
official and refused to recognize the right of Congress to interfere
with me
excepting by impeachment or in other Constitutional manner. On the
other hand,
wherever I found the officer unfit for his position I promptly removed
him,
even although the most influential men in Congress fought for his
retention.
The Jackson-Lincoln view is that a President who is fit to do good work
should
be able to form his own judgment as to his own subordinates, and, above
all, of
the subordinates standing highest and in closest and most intimate
touch with
him. My secretaries and their subordinates were responsible to me, and
I
accepted the responsibility for all their deeds. As long as they were
satisfactory to me I stood by them against every critic or assailant,
within or
without Congress; and as for getting Congress to make up my mind for me
about
them, the thought would have been inconceivable to me. My successor
took the
opposite, or Buchanan, view when he permitted and requested Congress to
pass
judgment on the charges made against Mr. Ballinger as an executive
officer.
These charges were made to the President; the President had the facts
before
him and could get at them at any time, and he alone had power to act if
the
charges were true. However, he permitted and requested Congress to
investigate
Mr. Ballinger. The party minority of the committee that investigated
him, and
one member of the majority, declared that the charges were well founded
and
that Mr. Ballinger should be removed. The other members of the majority
declared the charges ill founded. The President abode by the view of
the
majority. Of course believers in the Jackson-Lincoln theory of the
Presidency
would not be content with this town meeting majority and minority
method of
determining by another branch of the Government what it seems the
especial duty
of the President himself to determine for himself in dealing with his
own
subordinate in his own department.
---------------------
William
Howard Taft, Our Chief Magistrate and His
Powers (1916)
While it is important to mark out the exclusive field of jurisdiction
of each
branch of the government, Legislative, Executive and Judicial, it
should be
said that in the proper working of the government there must be
cooperation of
all branches, and without a willingness of each branch to perform its
function,
there will follow a hopeless obstruction to the progress of the whole
government. Neither branch can compel the other to affirmative action,
and each
branch can greatly hinder the other in the attainment of the object of
its
activities and the exercise of its discretion.
. . . 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, and
there is
nothing in the Neagle case and its definition of a law of the United
States, or
in other precedents, warranting such an inference. 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 [John] Tyler. He was aroused by [Justice Joseph] 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. . .
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.
----------------------------
Woodrow Wilson, Constitutional
Government in the United States (1908)
Some
of our Presidents have deliberately held themselves off from using the
full
power they might legitimately have used, because of conscientious
scruples,
because they were more theorists than statesmen. They have held the
strict
literary theory of the Constitution, the Whig theory, the Newtonian
theory, and
have acted as if they thought that Pennsylvania Avenue should have been
even
longer that it is; that there should be no intimate communication of
any kind
between the Capitol and the White House; that the President as a man
was no
more at liberty to lead the houses of Congress by persuasion than he
was at
liberty as President to dominate them by authority, – supposing that he
had,
what he has not, authority enough to dominate them. But the makers of
the
Constitution were not enacting Whig theory, they were not making laws
with the
expectation that, not the laws themselves, but their opinions, known by
future
historians to lie back of them, should govern the constitutional action
of the
country. They were statesmen, no pedants, and their laws are sufficient
to keep
us to the paths they set us upon. The President is at liberty, both in
law and
conscience, to be as big a man as he can. His capacity will set the
limit; and
if Congress be overborne by him, it will be no fault of the makers of
the
Constitution, — it will be from no lack of constitutional powers on its
part,
but only because the President has the nation behind him, and Congress
has not.
He has no means of compelling Congress except through public opinion.
That
I say he has no means of compelling Congress will show what I mean, and
that my
meaning has no touch of radicalism or iconoclasm in it. There are
illegitimate
means by which the President may influence the action of Congress. He
may
bargain with members, not only with regard to appointments, but also
with
regard to legislative measures. He may use his local patronage to
assist
members to get or retain their seats. He may interpose his powerful
influence,
in one covert way or another, in contests for places in the Senate. He
may also
overbear Congress by arbitrary acts which ignore the laws of virtually
override
them. He may even substitute his own orders for acts of Congress which
he wants
but cannot get. Such things are not only deeply immoral, they are
destructive
of the fundamental understandings of constitutional government and,
therefore,
of constitutional government itself. They are sure, moreover, in a
country of
free public opinion, to bring their own punishment, to destroy both the
fame
and the power of the man who dares to practice them. No honorable man
includes
such agencies in a sober exposition of the Constitution or allows
himself to
think of them when he speaks of the influences of “life” which govern
each
generation’s use and interpretation of that great instrument, our
sovereign
guide and the object of our deepest reverence. Nothing in a system like
ours
can be constitutional which is immoral or which touches the good faith
of those
who have sworn to obey the fundamental law. The reprobation of all good
men
will always overwhelm such influences with shame and failure. But the
personal
force of the President is perfectly constitutional to any extent to
which he
chooses to exercise it, and it is by the clear logic of our
constitutional
practice that he has become alike the leader of his party and the
leader of the
nation.
The
political powers of the President are not quite so obvious in their
scope and
character when we consider his relations with Congress as when we
consider his
relations to his party and to the nation. They need, therefore, a
somewhat more
critical examination. Leadership in government naturally belongs to its
executive officers, who are daily in contact with practical conditions
and
exigencies and whose reputations alike for good judgment and for
fidelity are
at stake much more than are those of the members of the legislative
body at every
turn of the law’s application. The law—making part of the government
ought
certainly to be very hospitable to the suggestions of the planning and
acting
part of it. Those Presidents who have felt themselves bound to adhere
to the
strict literary theory of the Constitution have scrupulously refrained
from
attempting to determine either the subjects or the character of
legislation,
except so far as they were obliged to decide for themselves, after
Congress had
acted, whether they should acquiesce in it or not. And yet the
Constitution
explicitly authorizes the President to recommend to Congress “such
measures as
he shall deem necessary and expedient,” and it is not necessary to the
integrity of even the literary theory of the Constitution to insist
that such
recommendations should be merely perfunctory. Certainly General
Washington did
not so regard them, and he stood much nearer the Whig theory than we
do. A
President’s messages to Congress have no more weight or authority than
their
intrinsic reasonableness and importance give them: but that is their
only
constitutional limitation. The Constitution certainly does not forbid
the
President to back them up, as General Washington did, with such
personal force
and influence as he may possess. Some of our Presidents have felt the
need,
which unquestionably exists in our system, for some spokesmen of the
nation as
a whole, in matters of legislation no less than in other matters, and
have
tried to supply Congress with the leadership of suggestion, backed by
argument
and by iteration and by every legitimate appeal to public opinion.
Cabinet
officers are shut out from Congress; the President himself has, by
custom, no
access to its floor; many long—established barriers of precedent,
though not of
law, hinder him from exercising any direct influence upon its
deliberations;
and yet his undoubtedly the only spokesman of the whole people. They
have again
and again, as often as they were afforded the opportunity, manifested
their
satisfaction when he has boldly accepted the rôle of leader, to which
the
peculiar origin and character of his authority entitle him. The
Constitution
bids him speak, and times of stress and change must more and more
thrust upon
him the attitude of originator of policies.
His
is the vital place of action in the system, whether he accept it as
such or
not, and the office is the measure of the man, — of his wisdom as well
as of
his force. His veto abundantly equips him to stay the hand of Congress
when he
will. It is seldom possible to pass a measure over his veto, and no
President
has hesitated to use the veto when his own judgment of the public good
was
seriously at issue with that of the houses. The veto has never been
suffered to
fall into even temporary disuse with us. In England it has ceased to
exist,
with the change in the character of the executive. There has been no
veto since
Anne’s day, because ever since the reign of Anne the laws of England
have been
originated either by ministers who spoke the king’s own will or by
ministers
whom the king did not dare gainsay; and in our own time the ministers
who
formulate the laws are themselves the executive of the nation; a veto
would be
a negative upon their own power. If bills pass of which they
disapprove, they
resign and give place to the leaders of those who approve them. The
framers of
the Constitution made in our President a more powerful, because a more
isolated, king than the one they were imitating; and because the
Constitution
gave them their veto in such explicit terms, our Presidents have not
hesitated
to use it, even when it put their mere individual judgment against that
of
large majorities in both houses of Congress. And yet in the exercise of
the
power to suggest legislation, quite as explicitly conferred upon them
by the
Constitution, some of our Presidents have seemed to have a timid fear
that they
might offend some law of taste which had become a constitutional
principle.
In
one sense their messages to Congress have no more authority than the
letters of
any other citizen would have. Congress can heed or ignore them as it
pleases;
and there have been periods of our history when presidential messages
were
utterly without practical significance, perfunctory documents which few
persons
except the editors of newspapers took the trouble to read. But if the
President
has personal force and cares to exercise it, there is this tremendous
difference between his messages and the views of any other citizen,
either
outside Congress or in it: that the whole country reads them and feels
that the
writer speaks with an authority and a responsibility which the people
themselves have given him.