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.