On the Source of Executive Power

Are there any limits on executive power under Roosevelt’s understanding? Is there any room for a strong president under Taft’s understanding?
To what extent does Roosevelt’s understanding fit within Alexander Hamilton’s presentation of executive power in Federalist No. 70 (1788) and Pacificus (1793)?

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Although they were once close political allies, Theodore Roosevelt and William Howard Taft came to embody different wings of the Republican Party. Roosevelt was a Progressive, who had come to embrace reforms such as the direct primary, the ballot initiative, the referendum, and the recall. Taft was more of a traditionalist, who believed that party government, with its emphasis on loyalty to party leadership, was an indispensable part of democratic life. The direct primary would allow individual members of the party, rather than party leaders at a convention, to choose the party nominee.

In the following selections from Roosevelt’s An Autobiography of Theodore Roosevelt (1913) and Taft’s Our Chief Magistrate and His Powers (1916), we can see the difference in their understandings of presidential power. Roosevelt’s argument invites comparison with Jefferson (Letter to John B. Colvin (1810)) and Lincoln (Message to Congress in Special Session (1861); Letter to Albert G. Hodges (1864)).

—Jeremy D. Bailey

Source: Theodore Roosevelt, An Autobiography of Theodore Roosevelt, ed., Stephen Brennan (New York: Skyhorse Publishing, 2011), 304–10; William Howard Taft, Our Chief Magistrate and His Powers (New York: Columbia University Press, 1916), 138–40.

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.

About appointments I was obligated by the Constitution to consult the Senate; and the long-established custom of the Senate meant that in practice this consultation was with individual Senators and even with big politicians who stood behind the Senators. I was only one-half the appointing power; I nominated; but the Senate confirmed. In practice, by what was called “the courtesy of the Senate,” the Senate normally refused to confirm any appointment if the Senator from the State [of the nominee’s residence] objected to it. In exceptional cases, where I could arouse public attention, I could force through the appointment in spite of the opposition of the Senators; in all ordinary cases this was impossible. On the other hand, the Senator could, of course, do nothing for any man unless I chose to nominate him. In consequence the Constitution itself forced the President and the Senators from each State to come to a working agreement on the appointments in and from that State.

My course was to insist on absolute fitness, including honesty, as a prerequisite to every appointment; and to remove only for a good cause, and, where there was such cause, to refuse even to discuss with the Senator in interest the unfit servant’s retention. Subject to these considerations, I normally accepted each senator’s recommendations for offices of a routine kind, such as most post-offices and the like, but insisted on myself choosing the men for the more important positions. I was willing to take any good man for postmaster; but in the case of a Judge or District Attorney or Canal Commissioner or Ambassador, I was apt to insist either on a given man or else on any man with a given class of qualifications. If the Senator deceived me, I took care that he had no opportunity to repeat the deception.

In a number of instances, the legality of executive acts of my Administration was brought before the courts. They were uniformly sustained. For example, prior to 1907 statutes relating to the dispositions of coal lands had been construed as fixing the flat price at $10 to $20 per acre. The result was that valuable coal lands were sold for wholly inadequate prices, chiefly to big corporations. By executive order the coal lands were withdrawn and not opened for entry until proper classification was placed thereon by Government agents. There was a great clamor that I was usurping legislative power; but the acts were not assailed in court until we brought suits to set aside entries made by persons and associations to obtain larger areas than the statutes authorized. This position was opposed on the ground that the restrictions imposed were illegal; that the executive orders were illegal. The Supreme Court sustained the Government. In the same way our attitude in the water power question was sustained, the Supreme Court holding that the Federal Government had the rights we claimed over streams that are or may be declared navigable by Congress. Again, when Oklahoma became a State we were obligated to use the executive power to protect Indian rights and property, for there had been an enormous amount of fraud in the obtaining of Indian lands by white men. Here we were denounced as usurping power over a State as well as usurping power that did not belong to the executive. The Supreme Court sustained our action.

In connection with the Indians, by the way, it was again and again necessary to assert the position of the President as steward of the whole people. I had a capital Indian Commissioner, Francis E. Leupp. I found that I could rely on his judgement not to get me into fights that were unnecessary, and therefore I always backed him to the limit when he told me that a fight was necessary. On one occasion, for example, Congress passed a bill to sell to settlers about a half a million acres of Indian land in Oklahoma at one and a half dollars an acre. I refused to sign it, and turned the matter over to Leupp. The bill was accordingly withdrawn, amended so as to safeguard the welfare of the Indians, and the minimum price raised to five dollars an acre. Then I signed the bill. We sold that land under sealed bids, and realized for the Kiowa, Comanche, and Apache Indians more than four million dollars–three millions and a quarter more than they would have obtained if I had signed the bill in its original form. In another case, where there had been a division among the Sac and Fox Indians, part of the tribe removing to Iowa, the Iowa delegation in Congress, backed by two Iowans who were members of my Cabinet, passed a bill awarding a sum of nearly a half million to the Iowa seceders. They had not consulted the Indian Bureau. Leupp protested against the bill, and I vetoed it. A subsequent bill was passed on the lines laid down by the Indian Bureau, referring the whole controversy to the courts, and the Supreme Court in the end justified our position by deciding against the Iowa seceders and awarding the money to the Oklahoma stay-at-homes.

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[1] 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.

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. . . .

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 [sic] 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 judicial branch has sometimes been said to be the most powerful branch of the government because in its decision of litigated cases it is frequently called upon to mark the limits of the jurisdiction of the other two branches. As already noted, by its continuity and the consistency of its decisions, the Court exercises much greater power in this regard than the other two branches. But it has no instruments to enforce its judgments, and if the Executive fails to remove the obstructions that may be offered to the execution of its decrees and orders, when its authority is defied, then the Court is helpless. It may not directly summon the army or the navy to maintain the supremacy of the law and order. So if the judges of the Court were to refuse to perform the judicial duties imposed by Congress, the object of Congress in much of its legislation might be defeated. And if Congress were to refuse to levy the taxes and make the appropriations which are necessary to pay the salaries of government officials, and to furnish the equipment essential in the performance of their duties, it could paralyze all branches of government. The life of the government, therefore, depends on the sense of responsibility of each branch in doing the parts assigned to it in the carrying on of the business of the people in the government, and ultimately as the last resource, we must look to public opinion as the moving force to induce affirmative action and proper team work. The power over the purse is, however, practically the greatest power, and that Congress exercises without control by either of the other branches. Therefore, when fear is expressed of the usurpation by other branches and the thieving of jurisdiction by either, we must keep in mind that the legislative power to withhold appropriations is that which in the history of constitutional government has always been the most powerful agency in the defense of the people’s rights.

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.[2] 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. . . .

  1. 1. William Howard Taft (1857–1930).
  2. 2. The In re Neagle case (1890) turned on the question whether the US attorney general could legally appoint a bodyguard for a Supreme Court justice. A federal marshal, appointed as bodyguard to a justice riding circuit in California, shot and killed a man he thought to be threatening the justice, and California officials arrested the marshal. When the US sued for the marshal’s release, the state challenged the order, on the grounds that no national statute authorized the appointment of the bodyguard. The Supreme Court reasoned that the attorney general had the power to make the appointment since providing protection for the justice would further the execution of federal laws, and the president has the power to enforce the law even in the absence of specific laws passes by Congress
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