America was treated last week to a fortuitous intersection of history and current events. The very week that critics of the President Bush’s “vigorous” style of the presidency celebrated the Supreme Court’s decision in Hamdan v. Rumsfeld, the editors of Time devoted the bulk of an issue to President Teddy Roosevelt.
As Christopher Caldwell noted a few years ago, TR — the “Bull Moose” — continues to captivate the American imagination; Time’s celebration of TR was only the latest evidence of TR’s curious grip on the American imagination. But Lefties eager to cite TR as President Bush’s historical superior — as they increasingly seem to — ignore that Roosevelt’s view of the presidency was far more “imperial” than Bush’s today.
Of course, it’s no surprise that Democrats appreciate TR. While he was a member of the Republican party, his political programs largely stand in contrast to those of the modern GOP: He was an environmentalist, a trust-buster, a campaign-finance reformist, and a critic of a federalism that left significant power in the hands of the states. He won a Nobel Peace Prize for mediating the end of the Russo-Japanese War. Time’s lead essay’s thesis statement itself reveals such a focus:
Again and again, he framed the questions we still ask. How much influence should the government have over the economy? How much power should the U.S. exert in the wider world? What should we do to protect the environment? The answer he liked best — More — didn’t satisfy everyone. It still doesn’t.
And so, modern Democrats claim him as their own. Sen. Hillary Clinton, speaking at the Take Back America conference last month, seemed to embrace TR as the first New Democrat. (“[S]tarting with Teddy Roosevelt, all the way through Bill Clinton, this crowd had been unhappy.”) Sen. Charles Schumer invoked TR in May as he called for a plan to break up the vertically integrated oil companies. Likewise, Sens. Harry Reid and Barbara Boxer, along with Rep. John Murtha, have all quoted Roosevelt in their pronouncements that those who would not sufficiently challenge President Bush are themselves “unpatriotic.”
Yet those who would celebrate TR’s presidency would miss the forest for the trees if they did not pay at least some attention to TR’s view of the presidency itself. (The lead Time essay relegates this to the pentultimate paragraph.) What they would find is that TR’s view of the presidency is wholly incompatible with that espoused by modern critics of the Bush administration.
Citing Andrew Jackson and Abraham Lincoln as his inspiration, TR formulated what has come to be known as the “stewardship” presidency:
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. *** 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. (Emphasis added.)
Executive Orderer
Some may distinguish TR’s presidency from the current Bush administration on the grounds that where Roosevelt admitted that his action could be “forbidden by the Constitution or by the laws,” President Bush claims “inherent authority” unimpedable by statute. But TR’s pledge of obedience to congressional control was more rhetoric than actual practice. He pioneered the use of the executive order in its modern form, issuing them at a rate of 137 per year. (His predecessors, Cleveland and McKinley, averaged 18 and 11 per year, respectively.) And he was not averse to using executive orders in conjunction with his displacement of congressional authority: As Edmund Morris notes in Theodore Rex, TR created much of the National Forests system by “sign[ing] executive orders, knowing that Congress had no power to stop them except by a formal vote — which he would at once veto.”
Roosevelt summarized his use of Executive Orders in brazen terms:
The laws were often insufficient, and it became well-nigh impossible to get them amended in the public interest when once the representatives of privilege in Congress grasped the fact that I would sign no amendment that contained anything not in the public interest. It was necessary to use what law was already in existence, and then further to supplement it by Executive action.
His efforts to “supplement” the acts of Congress were not limited to cases of congressional inaction; he was willing to “supplement” the law in the face of explicit congressional action to the contrary. He bragged openly that he would thwart Congress and act in furtherance of his own prerogatives. Speaking to a conference of governors in 1908, he announced that he would continue to rely on the independent Inland Waterways Commission, despite congressional insistence to the contrary. “[I]f Congress persisted in depriving it of funds,” Morris writes, “he would perpetuate it by executive means.”
Roosevelt rejection of congressional prerogatives involved in at least one case a tool that has come into increasing controversy under the Bush administration: the presidential signing statement. Near the end of TR’s presidency, Congress passed an amendment to the Sundry Civil Bill, a law prohibiting the president from relying on independent advisory committees. TR did not veto the bill; rather, he signed it while declaring that limiting provision “ineffective.” As he later recounted, “I would not sign the bill at all if I thought the provision entirely effective. But the Congress cannot prevent the President from seeking advice. Any future President can do as I have done, and ask disinterested men who desire to serve the people to give this service free to the people through these commissions.” In short: Just as President Bush relies on signing statements to declare that he will apply congressional enactments in a way that does not limit what he sees to be the constitutional prerogatives of the president, so did TR.
Supreme Dismissal
Similarly, Roosevelt’s suggestion that he considered himself bound by the Constitution cannot be taken as an admission that he considered himself strictly bound by the Constitution as interpreted by Supreme Court precedent. As he noted in his autobiography, during his presidency the Supreme Court had already struck down an employers’ liability law regarding interstate railroads. Rather than bow to precedent, “[w]e got through [Congress] another [bill], which stood the test of the courts.” As TR made manifest in that chapter of his autobiography, he in no way deferred to the courts as neutral arbiters of jurisprudential principle; rather, he saw their decisions as, too often, “high-sounding abstractions” meant only to prevent undercut policies unpalatable to those of certain political tastes.
TR’s view of Supreme Court precedent was perhaps most colorfully illustrated by his effort to break the Pennsylvania coal-mine strikes of 1902. TR planned to send the Army into Pennsylvania to break up the strikes, confiscate the mines, and run them as government operations. As Edmund Morris notes, Rep. James Watson, the GOP whip, received the proposal with shock:
What about the Constitution of the United States? What about seizing private property without due process of law? Exasperated, Roosevelt grabbed Watson by the shoulder and shouted, “The Constitution was made for the people and not the people for the Constitution.
In that episode, Roosevelt summarized his theory of the Constitution, one very much reflective of Abraham Lincoln’s view of the Constitution as revealed in discussions of the Dred Scott case during the Lincoln-Douglas debates, or of Andrew Jackson’s interpretation and application of the Constitution in the matters of the Second Bank of the United States or of the displacement of Indians in Georgia: The president, sworn to defend the Constitution and faithfully execute the laws, would be bound not by the courts’ or Congress’s reading of the Constitution, but rather by his own, as endorsed by the American people. This goes far beyond the position of President Bush as stated and practiced; President Bush, for example, has never suggested that he would not obey the decisions of the Supreme Court, even in cases arising from the Global War on Terror.
In sum, then, TR’s view of the presidency was: The president is empowered to take whatever action is necessary to promote the public interest, so long as such action does not conflict with what the president sees to be an unabridgeable constitutional prohibition. When his theory is so distilled, no one can deny that TR’s presidency is utterly incompatible with the view of the presidency espoused by President Bush’s critics today.
Instead, the quintessential hero of the president’s critics is Justice Robert Jackson, whose opinion in the Korean War-era Steel-seizure cases set forth the doctrine that the president may rarely, if ever, take action incompatible with the expressed will of Congress. And in the first footnote of that opinion, Justice Jackson explicitly recognized and dismissed Roosevelt’s position. Jackson’s draft opinions, however, went further. In his first full draft of that opinion, Jackson wrote:
The argument that the President possesses all power that is not expressly taken from him by the Constitution is a complete legal and historical perversion which may have been entertained by some political figures but, so far as I know, has never had the endorsement of any responsible legal officer of the Government.
That President Bush’s critics would claim a president whose rhetoric and acts far outpaces the those of today’s “imperial” presidency is by now not original. TR is not the only such president so claimed today; indeed, he’s not even the only “President Roosevelt” who falls into this category. FDR remains a hero to those who criticize President Bush’s actions, even though FDR’s wartime actions, including domestic surveillance prior to the declaration of war, match if not surpass President Bush’s. Last weekend, Chris Matthews — no friend of President’s Bush’s view of the presidency — described FDR as one of two men who, in World War II, “delivered us from evil.” If FDR’s more questionable constitutional actions rate not even the slightest qualification to Matthews’s esteem for FDR, why should such actions control Matthews’s view of President Bush?
What today’s bipartisan acclaim of TR, FDR, Lincoln, and others demonstrates is that, in the long run, the American public simply does not put much (if any) weight on legal disputes, however important, when considering the greatness of a presidency. To note that is not to endorse that; nonetheless, it is something that Democrats should consider today. Even assuming that a good deal of Americans are correct in their constitutional criticisms of President Bush today, what can they possibly find so inherently wrong about Dubya’s “imperial” actions, if they simultaneously laud Lincoln, FDR, or Time’s main man, Teddy Roosevelt?
– Adam J. White is an attorney in Washington, D.C. His article on Justice Jackson’s draft opinions in the “Steel Seizure cases” will appear in the Albany Law Review later this year.