Civic Literacy Curriculum

As James Madison observed in a 1793 essay, “The natural province of the executive magistrate is to execute laws, as that of the legislature is to make laws. All his acts therefore, properly executive, must presuppose the existence of the laws to be executed.”

Historically, executive power (which in the U.S. belongs to the president) was focused in two spheres: 1) setting foreign policy and 2) enforcing (or “executing”) laws. Making the laws, on the other hand, and setting domestic policy, would be the role and responsibility of the legislature.

The U.S. Constitution largely follows this arrangement, while limiting and reallocating certain powers between the executive and legislature.  In general, Article I gives Congress only the “legislative powers herein granted”, while Article II holds that “the executive power shall be vested in a president of the United States of America,” though it also goes on to elaborate some of the specific powers.

Not only must he or she take care that the laws be faithfully executed, but the President is assigned to be commander-in-chief of the military. He or she also serves as chief diplomat, and appoints, with the consent of the Senate, federal judges and members of the executive branch.

Finally, preserving a distribution of powers already present in the British monarchy, the president receives a part of the legislative power: the power to approve or block legislation by signing or vetoing bills passed by Congress (though Congress itself still retains the ultimate legislative power through its ability to override a president’s veto).  At the same time, the Constitution also moved certain traditional powers from the executive and puts them in the hands of Congress when it comes to foreign policy, namely the power to declare war and ratify treaties.

In his 1913 autobiography, former President and then recent candidate Theodore Roosevelt argued that the president should be re-conceived to be a much more active figure, authorized to act broadly on behalf of the public good, rather than needing specific constitutional authorization for his or her actions, a view described as the “stewardship” theory.  According to Roosevelt, the president should be “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.” By way of contrast, Roosevelt stated that he “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.” In other words, the president could do whatever he could for the people unless specifically banned by the Constitution.

Former president William Howard Taft, who would soon be appointed to the Supreme Court, defended the more traditional understanding of presidential power in his own 1916 book:

The true view of the executive is….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.

In Taft’s view, that is, no single person should have the power to do whatever he or she wants as president simply by claiming to be working for good. Rather, the president must respect the limits of the office and work within the powers it is given.   As Taft noted--reminding his readers he had been a member of Roosevelt’s own cabinet—even the examples Roosevelt gave to justify the need for a broader “stewardship model,” such as his previous intervention in California’s anti-Japanese law, actually came from his constitutional duties—such as enforcing an international treaty ratified by the United States. In other words, even Roosevelt had been able to achieve his ends by following the powers and obligations given to the office by the Constitution.

Nonetheless many would argue that the modern presidency more closely resembles Theodore Roosevelt’s wide-ranging conception. Today, the president exercises, in practice, much of the law-making power formally assigned to the legislature by the Constitution. This is because Congress has delegated much of its power to administrative agencies that are typically part of the executive branch but that are ostensibly working to execute Congress’ wishes.  These agencies are sometimes referred to by those concerned about the consolidation of power away from lawmakers as “the administrative state.”

As it had in earlier cases, in 1928, the Supreme Court, in the case of J.W. Hampton v. United States, upheld the limited delegation of a power from Congress to the president, saying that as long as an “intelligible principle” existed by which Congress’s legislative will was made clear, then the power could be delegated to the executive branch to carry it out. Thus, for then-Chief Justice Taft writing the opinion, Congress’s essential role in policymaking was preserved. (The specific example in that case was whether Congress could instruct the executive to implement a tariff at certain times (but not at others) based on whether certain conditions Congress described were occurring. In other words, the executive’s job was to decide which condition held and then apply Congress’s rule accordingly, rather than decide what the policy should be).

The scope of delegation subsequently expanded beyond such conditional legislation, granting the executive much more discretion in setting the details--and often much of the core of-- policy. That is a key part of why the presidency has become much more powerful—one now reads about “executive orders” or executive branch “rulemaking” that would seem, to the layman, to be setting important policy, which is the role of the legislature. This delegation has been justified on the grounds that much of modern life is too technical and thus requires both more expertise and flexibility than Congress itself can muster; others argue that it has resulted in the collapse of the separation of powers and the consolidation of real political power in an unelected bureaucracy.