The Presidency and Federal Power

by Marc Landy, Ph.D.

he framers of the Constitution believed that the greatest safeguard against government tyranny was to limit the powers of government by specifically enumerating them. That is why the powers of Congress are limited to those enumerated in Article I of the Constitution and those necessary and proper for implementing them. Article I vests in Congress only those legislative powers herein granted. No such limits appear in Article II which vests the President with the executive power. The limiting phrase herein granted do not appear. In view of the Founders fears of tyranny it is clear that the absence of those two words was not intended to let the president do what ever he wanted. But what limits did they mean to impose? Historically, disputes over the extent of executive power have erupted in two different ways. One pits the President against Congress. Did he usurp power that the Constitution gives to the other branch? The other unites the President and the Congress against a strict construction of the Constitution. Are they conspiring together to obtain powers for the federal government that the Constitution denies them? A major dispute of the first kind erupted during the first presidential term. In 1793 George Washington issued a Neutrality Proclamation declaring

that the United States would refrain from taking sides in the war between Britain and France. Supporters of France, including James Madison and Thomas Jefferson, denounced the Proclamation not only because they wanted to side with France but because they claimed that the President had no authority to issue such a proclamation. As Commander in Chief, he was responsible for carrying out the orders of Congress regarding war and peace. Washingtons supporters, especially Alexander Hamilton, countered that the Constitution only gave Congress the power to declare war. Congress was restricted to that enumerated power. The responsibility to preserve peace, unless expressly propelled into war by Congress, was therefore the responsibility of the Executive. Washington prevailed. Congress did not repudiate his Proclamation. Jeffersons strict view of the federal governments enumerated powers was tested when he became President. The Constitution does not specifically authorize the federal government to acquire new territory or to incorporate such territory into the Union; nonetheless, President Jeffersons Louisiana Purchase doubled the size of the Union and Congress approved it. Jefferson himself believed that a constitutional amendment was needed
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Presidents & the Constitution

to enable the US to make the Purchase and federal government power to aid individuals. incorporate the new territories. He even In Clevelands view, Congresss desire to help wrote a draft for such an amendment. But his Texas farmers had blinded it to the need to advisors argued that speed was of the essence: accomplish a deeper purpose: encouraging Emperor Napoleon of France might change self-reliance and mutual aid by minimizing his mind about selling, and it might take years government intrusion. for a sufficient number of states to ratify the In responding to the Great Depression, amendment. Jefferson was persuaded that Herbert Hoover adopted a strict and Franklin the power to negotiate treaties that Article Delano Roosevelt a loose construction of II granted him was sufficient to enable him, the powers of Congress. Hoover was far with congressional approval, to purchase the less absolutistic than Grover Cleveland territory. The more difficult question of how to had been, but he did not believe that the incorporate it into the Union emergency conditions that the could then be resolved in a Great Depression imposed more leisurely fashion. allowed him to ignore what Hoover did not believe After Congress approved the he understood to be the that the emergency Purchase, John Quincy Adams constitutional limits on federal conditions that the proposed a constitutional power. He supported voluntary Great Depression amendment enabling the forms of business cooperation government to incorporate with the government providing imposed allowed him new territory in the Union, but guidance and some forms of to ignore what he Jeffersons allies in Congress coordination, but he rejected understood to be the rejected the idea. Jefferson efforts to endow these voluntary constitutional limits on believed the Purchase was bodies with any law-making or key to creating great new law-enforcing powers. He also federal power. opportunities for Americans. rejected the establishment of any Because the Constitution new executive agency that would established a process for creating new states, claim emergency powers not specified in the the acquired territories would not need to be Constitution. His major initiatives rested on ruled from Washingtonthey would become enumerated powers found in Article I: foreign sovereign states of their own. In the end, commerce, and the banking power derived from Jefferson did not choose to endanger this vision the taxing and spending clause. He signed the by subjecting it to the uncertainties of the Smoot Hawley Tarriff Bill designed to protect constitutional amendment process. American farmers against competition from In contrast to Jefferson, President Grover foreign imports and the statute establishing Cleveland chose not to cooperate with the Reconstruction Finance Corporation Congress in going beyond what he considered to provide emergency loans to failing major to be the strictly enumerated powers of the financial and industrial corporations. But federal government. In 1887, he vetoed a bill he firmly opposed providing direct financial to appropriate $10,000 to buy seeds to give to help to individuals for much the same reasons farmers in Texas whose crops had failed due that Cleveland would not help Texas farmers. to severe and prolonged droughts. In many The Constitution provided no such authority respects this bill was unexceptional. Article and the receipt of such unearned aid would II of the Constitution grants Congress the undermine individual responsibility and power to tax and spend, thus Congress clearly initiative. had the power to appropriate the $10,000 Roosevelt took the opposite tack. In his sum. But the Constitution did not give the First Inaugural Address, he announced that he
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would treat the task of economic recovery as taken to mean that a very wide variety of novel we would treat the emergency of a war and he interventions by government into the economy urged Congress to grant him Executive power were constitutional if they were valuable tools to wage a war against the emergency, as great for serving the general welfare. By the 1940s, as the power that would be given to me if we FDR and the Supreme Court were treating the were in fact invaded by a foreign foe. But FDR commerce power as a power to preserve the rarely had to invoke emergency powers because health and vitality of the national economy; Congress supported his loose constitutional hence, the extension to wage and hours constructions. legislation, working conditions etc. The massive intervention of FDR believed that the the New Deal into virtually all new economic conditions FDR believed that the sectors of the economythe brought about by the new granting of new rights to industrial economy demanded new economic conditions labor unions, the dispensing the establishment of a set of brought about by of relief aid to individuals, positive economic rights the new industrial and the establishment of old most importantly the right economy demanded the age pensionswere based to economic security in ones on loose construction of old age to supplement the establishment of a set of the Commerce Clause, the political rights propounded positive economic rights to Necessary and Proper Clause in the Declaration of supplement the political and the General Welfare Independence and secured in rights propounded clauses all found in Article I. the Constitution. Political FDR interpreted commerce rights placed limits on what in the Declaration of to mean almost any form of government could do. In Independence and secured production, sale, or transport FDRs view, economic rights in the Constitution. of goods or services that might demanded positive action from in any way influence economic government and, therefore, conditions in more than one required a loose construction state. For example, a federal law to regulate of the Constitution to enable government to relations between labor and management was secure them. justified on the grounds that conditions of The President is sometimes called Chief employment had an indirect, but nonetheless Legislator in that he can use what Theodore meaningful, impact on commerce. Roosevelt called the bully pulpit to advocate Prior to the New Deal, the general welfare for what he believes will be beneficial laws. The clause had never been invoked to justify a Presidents understanding of the Constitution, new law. The consensus of judges and law therefore, will influence not only the degree to makers was that it had little meaning since which he seeks to actively promote laws, but it was followed by a specific enumeration also the kinds of regulations he will propose. of the powers of Congress. Why bother to Dr. Marc Landy is Professor of Political Science enumerate powers if the Congress can simply at Boston College. A graduate of Oberlin act in the general welfare? FDR took the College, he earned his Ph.D. in Government opposite view. Some very important New from Harvard University. He has also coDeal policies were based on the claim that the authored several books, including American federal government had broad authority to Government: Balancing Democracy and provide for the general welfare. In a similar Rights and Presidential Greatness. vein, the Necessary and Proper Clause was

Presidents & the Constitution

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