Posted: May 10, 2004
. Jefferson Powell's new edition of William Howard Taft's Our Chief Magistrate and His Powers is a charming and useful corrective to the most egregious modern theories of presidential leadership. The book takes the form of a series of lectures on executive power delivered at Columbia University, and other places, and published in 1916. The lectures were delivered while Taft was professor of constitutional law at Yale University, and draw heavily upon his recent experience as president.
In a refreshingly anachronistic manner, Taft's book refers routinely to the formal powers and duties of the president, taking the reader back to an era in academic discourse before the proliferation of studies of presidential attributes, personality or leadership styles, media strategies, organizational constructs, and "the permanent campaign." Taft's is a clear and persuasive recitation of the primary constitutional powers and duties of the chief magistrate, and how the Constitution provides for the legal development of further executive obligations. In six chapters he treats six major powers and a collection of six minor powers. These are preceded by a discussion of the distribution of governmental powers generally, and followed by and summed up in theoretical and practical reflections on the limits of presidential power in particular. Bounded by these theoretical accounts at each end, the discussion of specific powers and duties is eminently practical in its approach.
The discussion of the legal foundation of executive power is the great strength of the book. In his informative introduction, H. Jefferson Powell, professor of law at Duke University, illuminates the sharp contrast between Taft and his immediate predecessor and successor exactly on the point of law. Law is central to the exercise of legitimate executive power for Taft, while it is peripheral, and at times an impediment, for Theodore Roosevelt and Woodrow Wilson. Powell nicely explicates the patently unfair treatment Taft received in Roosevelt's Autobiography, in which, propounding his "stewardship" theory of the presidency, T.R. likened Taft to James Buchanan and himself to Andrew Jackson and even Abraham Lincoln. Powell neatly pricks this bubble of conceit, arguing not only for Taft's significant and substantial accomplishments as a powerful executive, but also as an astute politician in his own right.
The book shines in Taft's chapter on "The Duty of the President to Take Care That the Laws Are Executed." This is the "widest and broadest duty which the President has," and, interestingly, this power is discussed in the same chapter as the Commander-in-Chief powers and duties. Here we see combined the dual character of the executive: the rather more benign civil magistrate, and the violent prosecutor of the nation's wars, enforcer of the national interest, and wielder of the nation's power. It is here that Taft introduces the Supreme Court's decision in re Neagle (1890), in which the executive power is said to include duties inferable from laws duly enacted. In this case, a federal marshal serving in the Department of Justice was understood to have a lawful authority to protect a judge, despite the fact that there was no law authorizing that specific function. In this discussion, Taft moves as far as he ever will from relying on a specific grant of power to relying on what he calls a power "justly implied and included" within such an express grant.
In addition to the take-care clause and the Commander-in-Chief power, Taft addresses the veto, appointment power, foreign relations, and the pardon. In each case, he adopts a similar pattern of principled explanation of the legal and constitutional meaning of the power or duty, followed by explanatory examples, often from his own experience as president. He follows the same pattern in his treatment of what he terms the "minor powers" of consulting department heads; informing Congress of the state of the union; recommending wise, expedient, and necessary legislation; issuing commissions; convening Congress in special session; and adjourning Congress. Throughout he follows his practice of tracing the legal thread that connects the action in question to the formal constitutional grant or legal statute that authorizes it.
Taft thus follows Alexander Hamilton's example in the famous Pacificus papers (1793), his defense of President George Washington's issuance of a neutrality proclamation. Hamilton laid down four principles of constitutional interpretation to justify Washington's exercise of executive power. According to Hamilton, in order to be just, the president's action must be 1) within his constitutional authority and duty; 2) in regard to a power clearly within the responsibility of the national government; 3) in conformity with other constitutional provisions and the principles of free government; and 4) subject to the Constitution's exceptions and qualifications to the general vesting of executive power in the president. Likewise, Taft is careful in his lectures to interpret each executive action in relation to the other constitutional branches, the states, and other provisions of the Constitution. Indeed, it is the clarity of his explanation of the sources of authority, and the liveliness of his examples, that bring this brief book to life.
But Taft parts ways with Hamilton on that fourth criterion. Taft's strict adherence to specified grants of executive power leaves unanswered how, in the absence of law, a president should act. This is the question that John Locke attempted to address in his chapter on prerogative in the Second Treatise. What legal grounds would Taft find to answer the challenge Lincoln faced in 1861 of undertaking "measures, whether strictly legal or not,...ventured upon, under what appeared to be a popular demand, and a public necessity"? It is the exigent or contingent case that most clearly exposes the weaknesses of Taft's legal approach.
Thus he associated the oath of office with the veto power and the take-care clause, but did not examine the oath in the light in which Lincoln did, as a possible positive grant of authority in itself, useful to the preservation of the Union in just those exigent circumstances. Nor does he look to the vesting clause ("The executive Power shall be vested in a President of the United States of America") for anything more than descriptive power. Here Hamilton's fourth criterion offers a means to cope with political emergencies that is superior to Taft's legal principles. Hamilton understood the vesting clause to carry meaning as an undefined, or discretionary, power. Rather than viewing Article Two as an exhaustive (except for the veto) list of executive powers, as does Taft, Hamilton viewed the list of powers and duties as partial and incomplete, or as defining the exceptions and qualifications that the Constitution makes to natural executive power. Therefore, according to Hamilton (and, I would argue, Lincoln as well), the Constitution provided legally for the discretion to meet emergencies, and did so while maintaining a scrupulous regard for constitutional propriety, within the constitutional and legal structure that Taft so values.
For most situations, however, Taft is on solid ground. If he is not comprehensive, he is nearly so, and that is worth a great deal, particularly in an age that has lost a considerable degree of respect for the law. This is a delightful little book, and Powell serves as a sure guide to its main theses. Its re-issuance is welcome, and its argument for the constitutional and legal exercise of executive power bears serious reflection.
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This article in no way reflects the opinions, standards, or policy of the United States Air Force Academy or the United States Government.