As the Supreme Court grants certiorari in the State of Texas’ constitutional challenge to President Obama’s executive order on immigration, Professor Harold Bruff has written an impressive book that examines the powers and responsibilities of the president. An expert on the separation of powers, the author focuses special attention on the limits of executive orders and the duties imposed by the Faithful Execution clause of Article II—the two core constitutional issues to be addressed in the Texas case. It is a useful book that promotes understanding of the development of presidential power.
The book is arranged in 15 chapters that discuss the 44 presidents chronologically. In analyzing the contours of presidential power, the author principally focuses on four aspects of Article II: (a) the executive power as head of state; (b) the veto power; (c) command of the military; and (d) presidential responsibilities, such as faithfully executing the laws. To provide context, the author enriches the narrative with concise summaries of the pertinent historical events.
As a reflection of the struggle between the Hamiltonian and Jeffersonian conceptions of the executive, Article II sketches only the broad outlines of the powers of the president.
According to the author, the canvas has since been filled through a mixture of personal vision (the “Lockean prerogative”), powerful events, lawmaking gaps, power vacuums, opportunism, rivalries, and congressional deference. As such, the book demonstrates that the Constitution should not be treated “as a document with a meaning forever crystallized in Philadelphia, but as a work in progress whose meaning would emerge in application to concrete problems of governance.”
Although the author does not identify the presidents who have been the most consequential in the development of executive power, the short list appears to include Washington, Thomas Jefferson, Andrew Jackson, Abraham Lincoln, Franklin Roosevelt, and Harry Truman.
According to the author, Washington’s gravitas and dignified behavior “set a personal standard for all of his successors to emulate.” He was “cautious and restrained in the use of power,” but “was devoted to the rule of law.” Washington interpreted the Faithful Execution clause as imposing on him the duty to enforce federal law. Discussing an early tax rebellion, Washington stated that “it is my duty to see the Laws executed: to permit them to be trampled upon with impunity would be repugnant to that [duty].”
The book also recounts well how Washington shaped the office of the attorney general. The Judiciary Act of 1789 created the post, but was unclear as to who possessed the power to appoint and “whether attorneys general were exclusively executive officers.” Seizing the moment, “Washington asserted the constitutional power to appoint the attorney general by nominating his trusted personal lawyer, Edmund Randolph, to the office.” The Senate then “acquiesced by confirming him.” The author further notes that Washington established a practice that has continued to this day.
Jefferson famously said “that government is best which governs the least.” But he jealously guarded presidential power, arguing that the executive “had the power to interpret the Constitution independently of the Congress and the judiciary.” According to the author, Jefferson was the first president to adhere to the theory of “departmentalism,” in which “each of the three branches has the right and obligation to interpret the Constitution for itself.”
This theory guided Jefferson through the constitutional dilemma he faced with the Louisiana Purchase. Jefferson prided himself as a strict-constructionist. But in 1803, he had the opportunity to double the size of the country by paying $15 million to France. Jefferson’s problem was that the “Constitution was silent about the acquisition of new territory.” In obtaining congressional ratification, Jefferson referred to the purchase as an act “beyond the Constitution.”
Andrew Jackson’s presidency was transformational because, unlike his predecessors, he aggressively used the veto power and actively participated in the legislative process. According to the author, “Jackson’s position was that the president’s veto power was plenary, exclusive of control by the other two branches.” Jackson claimed the right to form his own views, “however inconsistent with those of congressional majorities.” By the end of Jackson’s presidency, “an important shift of power from Congress to the president had occurred.”
As the Civil War president, Abraham Lincoln made it clear in his first inaugural address “that he intended to decide constitutional questions himself, without much deference to the courts.” According to the author, from the outset, the “insurrectionary nature of the war suggested two lines of expansion of presidential power.” In the North, internal security measures “that would be extreme for a foreign war might be appropriate.” In the South, “executive action might deprive citizens of property they used to support the rebellion, including slaves.” Lincoln eventually “followed both avenues.”
In examining Franklin Roosevelt, he author observes that no president since Washington took office “with a wider range of permissible action.” Roosevelt believed that the Constitution was “marvelously elastic” and needed “no amendment to support the remedies of the Great Depression that he sought.” He also revolutionized the use of the executive order, issuing nearly twice as many (3,522) as any other president.
As expertly described by the author, the Supreme Court’s declaration that Truman’s executive order seizing the steel mills during the Korean War “stands as the most important Supreme Court decision defining the limits of the president’s constitutional authority in relation to statutes.” The book also chronicles well how Truman’s actions in the Korean War have forever transformed the president’s relationship with Congress in the deployment of the military abroad.
Looking forward, the author warns of the constitutional threat posed by a national security bureaucracy that supports “secret presidential decisions to use force or spy on the world, with only loose controls in congressional or judicial oversight.” He concludes that “the primary constitutional challenge of our time” is to find a way to respond to this development.