Spokane 1

Julia Spokane

The Expansion of Executive Power

James Madison once wrote, “ may be endangered by the abuses of liberty, as well as by the abuses of power” (Madison, No. 63); a theme that is seen throughout the presidencies of the . and Franklin Delano Roosevelt are comparable in that both

Presidents were confronted with constitutional issues and used the precedents set before them to help guide their presidencies. Madison helped create the and only had three presidents come before him, while Roosevelt had 115 years of presidents before him, who set their own standards. They differ in that Madison had a narrow, more strict interpretation of the

Constitution, while Roosevelt had a flexible interpretation of the Constitution. Madison used limited executive power and did not want to encroach on the , while

Roosevelt expanded his executive powers as he saw necessary in the time of an emergency.

Despite facing extraordinary crises in their presidencies, both personal beliefs and political circumstances led Madison and Roosevelt to hold contrasting views of executive power, providing differing precedents for future presidents to follow from, thus demonstrating how the president’s executive power has grown beyond the original intent of the Constitution.

Original Intent

When drafting the Constitution, the framers kept in mind the tyrannical powers that the king held, while also noting that the legislative branch could gain too much power. The framers looked to the states that already had a constitution, like . Virginia’s constitution created a with a weak executive office with all the power vested in the legislature, but the

Revolutionary War and Shays’ Rebellion proved that not having a strong executive weakened the federal government (Gormley, 4). then created a constitution in 1777 with a strong Spokane 2 executive, which turned out to be successful (Gormley, 2). The framers thus decided that, “The president would not be a king or sovereign. Instead, he would swear to protect and defend a higher : the Constitution” (Gormley, 2). The framers adopted a new Constitution that they intended to be assessed as time went on, with new presidents; they loosely defined certain provisions, but left details to be resolved in the future.

The intent of the framers continued with their appreciation of the three branches of government: the legislative, executive, and judicial. As Gormley writes, “the framers ensured this by building into the Constitution the notion of separation of powers and checks and balances, so that the three branches of government would remain in a constant state of tension, each guarding its own turf” (Gormley, 10). This new system would guarantee that one branch of government would not dominate power over the others, like Madison worried the legislature would. The overall goal was for America to adopt a whole new system of governance, which was done with a democratic ideal in mind. The new nation wanted to involve the governors of states and the citizens in order to balance the powers between the state and federal , ensuring that their voices could be heard in shaping the country.

Even after the Constitution was ratified, the framers had different understandings of it.

According to Jefferson Powell, author of “The Original Understanding of Original Intent,” the framers all agreed that it, “would be interpreted in accord with its express language” ( 903), but each framer had their own view of that. Madison favored that the future interpretation should focus on the people, while believed the Constitution should be interpreted by looking at the text itself, per . The approach to the Constitution was one from a common law view, where the framers provided that each article would have an accurate meaning attached to it. Although much of the Constitution is left open for interpretation, “the framers Spokane 3 were aware that unforeseen situations would arise, and they accepted the inevitability and propriety of construction” (Powell, 904). The framers chose not to do anything to help interpret the Constitution for the people of the future, as they knew the nation would expand with arising conflicts. Leaving it so future presidents could interpret, so they could decide what would be best for the United States in times of crises.

Executive Power

The Constitution explicitly gives the president expressed powers that are for them and them only. First, in Article II, Section 1, Clause 1, it states the Vesting Clause; “The executive power shall be vested in a President of the United States of America” (U.S Constitution, 9). The interpretation of this statement is that all executive power, the power to execute and enforce laws lays in the hands of the president, and it is his power to do so without from

Congress. Article II, Section 2, Clause 1 continues to give the president the power as

Commander in Chief of the Army and Navy, explaining that although Congress is to declare war, he is in charge of the military and the decisions in war. Section 2, Clause 2 also gives the president the power to appoint, including Supreme Court and members of his cabinet with consent of the Senate. The Presidential Veto is another power that the Constitution expressively gives the president, as stated in Article I, Section 7, in the Presentment Clause; it proclaims that all bills must be presented to him, giving him the power to sign or veto it.

The strongest aspect of the Constitution granting the president executive power lies in

Article II, Section 3 under the Take Care Clause. This clause states that “he shall take care that the laws be faithfully executed” (U.S. Constitution, 13). The are derived from this clause, which are powers that are not expressively given in the Constitution, but are laid out from set precedents or similar powers given; this is the constitutional basis for executive orders. Spokane 4

Inherent powers are those that can be deduced from the Constitution, usually from the Take Care

Clause, and are given in times of crises, particularly surrounding foreign affairs. This power is regulated by Congress as it can be limited by the legislature or deemed unconstitutional by the judiciary. Through the expressed, implied, and inherent powers, the executive is granted much power, perhaps even more than Congress.

Madison’s View of the Constitution

As the Father of the Constitution, Madison had a structuralist approach, an approach that

“draws inferences from the design of the Constitution: the relationships among the three branches of the federal government; the relationship between the federal and state governments; and the relationship between the government and the people” (Murrill, 18). Before Madison became president, he was very particular that the separate branches could not be completely detached and that they had to work together, specifically when creating new amendments.

Throughout his work on the Constitution and as president, it is evident that Madison referred to the legality of issues before reaching a decision.

The Federalist Papers are a collection of essays written by , James

Madison, and , all under the alias . The goal of the essays was to promote the ratification of the Constitution. In Federalist Paper No. 10, Madison explained how there were factions with complete opposite views of one another who wanted different things out of the

Constitution. Madison decided that were two methods to control the factions: “—by destroying liberty which is essential to its existence [or] by giving to every citizen the same opinions, the same passions, and the same interests” (Madison, No. 10). When deciding between the two,

Madison saw that the first was impossible and the second was impractical. Madison pushed for a strong central government as he believed the class struggle between the factions would come to Spokane 5 an end and it would unify the nation. He did so by assuring the citizens that the factions could not control others because of the and minority that produced diversity, which would prevent tyranny.

Moreover, Madison’s Federalist Paper No.51 further explained the structure of the new government and how liberty was achievable. Liberty is attained through the balance of independence and autonomy, as seen through the separation of powers. Madison wrote that with

“the preservation of liberty, it is evident that the members of each [power of government] should have as little agency as possible in the appointment of the members of the others” (Madison, No.

51). The separation of powers and the checks and balances are a vital part of making the new democratic government function. This idea became built within the Constitution as Articles I, II, and III provides that each branch must work with another in order to carry out its duty. The separation of powers is the behind Madison’s view of an energetic executive, while also advocating in favor of lesser executive power.

Madison’s Take on Executive Power

An energetic executive is a concept that Hamilton referred to in the Federalist Paper No.

70. In this essay, he defines an energetic executive structure as having one powerful executive leader, so the executive could act in a more timely manner than the legislature, while also having other branches for checks and balances to show that the government was not a monarchy.

Madison also agreed with this idea of a strong executive, but he did not agree with expanded powers of the executive. Madison believed that the executive branch should adhere to the separation of powers and should not infringe on other powers. Later on, this energetic executive became an excuse for expansion of presidential power, of which Madison did not approve. Spokane 6

While Madison was president, he had a very narrow outlook on executive power; he made sure not to encroach on the separation of powers. When using his power of the veto,

Madison only vetoed bills that he believed to be unconstitutional, leaving seven bills vetoed throughout his presidency (Vetoes). Madison was also the first president to declare war with the approval of Congress; following the regulations of the Constitution, but he struggled with the states not supporting his decision of going to war and not wanting to enlist their state militias’

(James Madison). After the , Madison wanted to use federal power for , but needed Congress to amend the Constitution to make it constitutionally legal to make those recuperations. Congress did not do so, causing Madison to veto the bill, saying;

“such a power is not expressly given by the Constitution, … [and] could not be deduced from any part of it without an inadmissible latitude of construction… and that the success of the

Constitution depends on a definite partition of powers between the General and State governments” (Ketcham, 69). Even though the improvements would have bettered the nation as a whole, Madison did not approve the legislation as he did not see the power as his nor

Congress’s to do so. His limited view of executive power and strict interpretation of the

Constitution is seen many other times throughout his presidency.

Madison had an “evolution of his constitutional principles” (Ketcham, 70), specifically on the issue of the national bank. While was president, Madison viewed the national bank as unconstitutional, and in 1808 when he took office, he vetoed the bill authorizing the second national bank as he stuck to his beliefs that it was unconstitutional. Later his opinion switched because of the War of 1812, and the strain that it put on the nation. Madison writes that,

“it is essential that the nation should possess a currency of equal value, credit, and use, wherever it may circulate,” and he goes on stating that “The Constitution has entrusted Congress’ Spokane 7 exclusively with the power of creating and regulating a currency of that description” (Madison,

Eighth). This demonstrates his evolution of his principles and expansion of executive power by first not approving of the national bank, and then seeing that the nation needed it in order to succeed. More importantly, although his principles changed, he still adhered to the Constitution in making his expansive decision. Acting as president has caused many presidents to change their personal beliefs in order to do what is best for the nation as a whole, and this is what

Madison did.

Summary of Madison

Overall, Madison’s personal beliefs and connection to the Constitution helped shape his view on executive power: a narrow, limited view on the expansion of presidential power. As a framer, Madison held a strict constructionist interpretation of the Constitution, carefully obeying the separation of powers. In the Federalist Papers, Madison promoted the Constitution, promising that liberty should not be taken away, it should be granted. He supported the concept of the separation of powers, ensuring that the three branches of government would create checks and balances, assuring a strong federal government. Continuing with the Federalist Papers,

Madison upheld Hamilton’s point of having an energetic executive as an asset to the presidency and to a united government. As Madison became president, his views shifted to reflect what would be best for the country; not deciding issues based on his personal beliefs. During his presidency he only declared one executive order (O’Neill), upholding his belief of a strong, but not expansive executive. When facing crises, Madison looked to the Constitution to support his decisions, exemplifying a president who rightfully served to protect and defend the Constitution of the United States.

Spokane 8

Roosevelt’s View of the Constitution

Franklin Delano Roosevelt began his term with a realignment, already showing how his presidency would make an imprint on the nation. The approach Roosevelt took was a pragmatic approach, “which generally focus[es] on the words of the Constitution as understood by a certain group of people,… and consider the likely practical consequences of particular interpretations of the Constitution” (Murrill, 12). Roosevelt based his interpretations of the Constitution and the political world on the presidencies of and , whom all based their approaches on ’s presidency (Pederson, 411). As Pederson states,

“FDR effortlessly took Lincoln from the Republican Party and adapted him to the Democratic

Party” (Pederson, 411). Before diving into Roosevelt’s presidency, and how his decisions reflected his pragmatic approach, looking at Theodore Roosevelt’s and Wilson’s methods help see how Roosevelt came across his methodology.

Theodore Roosevelt

Theodore Roosevelt was the twenty-sixth president and was Franklin Roosevelt’s distant fifth cousin. As Franklin grew up he looked up to Theodore’s political career and used him as a

“role model” (Pederson, 410). Roosevelt followed Theodore’s steps almost identically leading up to him becoming president: beginning law school, but not finishing it, beginning their political careers in New York, becoming assistant secretary of the navy and , and both were vice presidential candidates (Pederson, 410-11). Roosevelt climbed to power almost exactly as Theodore did, but once he became president, he adjusted his view. Theodore was seen as a progressive leader who wanted to increase the power of the presidency. He greatly followed the stewardship theory that he articulated in his autobiography; as he states the president should be a “steward of the people, and that the proper attitude for him to take is that he is bound to Spokane 9 assume that he has the legal right to do whatever the needs of the people demand, unless the

Constitution or the laws explicitly forbid him to do it” (Roosevelt). Theodore continued to write in regards to the stewardship theory that,

The most important factor in getting the right spirit in my Administration, next to the insistence upon courage, honesty, and a genuine 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. My view was that every executive officer, and above all every executive officer in high position, was a steward of the people bound actively and affirmatively to do all he could for the people (Roosevelt).

While president he looked to this theory to back his reasonings and set precedents based on it. He was the first to demonstrate this theory, and followed the progressiveness of Lincoln to do so.

Theodore went on as president, testing his power, occasionally overstepping his boundaries. In reference to Roosevelt’s Square Deal, he created a “domestic program [that] involved protecting the public from detrimental business practices by permitting vigorous government regulation of big business” (Bader, 336). In order to put the Square Deal in place,

Roosevelt needed the Supreme Court to authorize his plan, but unfortunately for him they did not and this initiated a huge rift between him and the judiciary. After this, he began to criticize

Article III of the Constitution, and he campaigned “to redefine it completely” (Bader, 338).

Franklin Roosevelt’s presidency is similar to Theodore’s as he has the same belief of the stewardship theory, creates similar legislation to the Square Deal, and also comes to a dilemma facing the Supreme Court.

Woodrow Wilson

Although Woodrow Wilson was a controversial president, he was a progressive president who also believed in a strong, energetic executive. He followed Lincoln and Theodore

Roosevelt’s path and believed in the stewardship theory. Wilson set precedents of infringing on Spokane 10 the separation of powers as he made the decision of armed neutrality, without congressional approval (Ambar, 361). Wilson pushed that since he was the president that he should be the sole organ of the federal government, upholding the notion that he was the steward of the United

States (Ambar, 362). Wilson created a plan that would ideally prevent another world war from occurring: the League of Nations. It was supposed to be compromised of many different nations including the United States, but America was unable to join as it was not the president’s power to enact a treaty, it was the legislature’s (Ambar, 362-3). Wilson tried to exercise executive power to create such decisions that would greatly impact the nation, but he evidently failed; leaving

Franklin Roosevelt to do so.

Roosevelt’s Take on Executive Power

As Roosevelt took on the role of the presidency he faced the crises of The Great

Depression and World War II. Along with those national crises, he faced dilemmas with both branches of the government. When reaching decisions in a constitutional manner, Roosevelt followed Theodore’s theory that “as long as the Constitution did not explicitly forbid it, he believed the chief executive could act” (Pederson, 412). Roosevelt looked to Hamilton’s

Federalist Paper No. 70, regarding the energetic executive, and believed this was key in being a good president and having a good government. This was Roosevelt’s justification among many issues, such as the , the Court-Packing Plan, matters of foreign affairs, his unprecedented third and fourth terms, the Japanese internment camps, and seizing

North American Aviation.

Onto Roosevelt’s first matter: The Great Depression. His predecessor, , did almost nothing to help with the depression, other than make matters worse with opposing the use of federal aid. To get the economy back on track, Roosevelt had to quickly come up with an Spokane 11 idea, and since the country was in a state of emergency, Congress would likely agree to his plan.

He proposed the New Deal, which would create new federal agencies and programs to provide relief. This plan was similar to Theodore’s Square Deal plan, but was altered to the severity of the nation. He proposed many pieces of legislation, but the foremost ones were the Social

Security Act, that established a federal safety set, The National Labor Relations Act (NLRA, or the Wagner Act), which gave employees the right to organize, and the G.I. Bill of Rights, that provided assistance to minorities. The G.I. Bill of Rights reflected Lincoln’s Land Grant College

Act that also aided minorities – a precedent in which Roosevelt followed. Roosevelt then realized that with the likelihood of the New Deal passing and a war in the future, that he needed to expand his powers in order to have more in making choices.

In order to expand the executive’s power, Roosevelt put forward the Brownlow

Committee, which created a report to be presented to congress on why he needed managerial power to better pursue his role as president. Roosevelt kept this a secret and once revealed to

Congress they loathed the plan. While handling this, Roosevelt was also dealing with conservative justices on the Supreme Court who were declaring over the New

Deal. These two issues clashed together and nothing improved for Roosevelt. The following year

Roosevelt proposed his reorganization plan of the New Deal and Congress approved of it in the

Reorganization Act of 1939, which gave him the Executive Office of the President. In this creation, he was allotted more staff and was given the power of acting as an “administrative presidency” (Pederson, 414), which granted him more power so he could quickly implement mandatory requirements through executive orders. This was the start of Roosevelt’s expanded executive power and the first time that the government was restructured since 1787. Spokane 12

The most infamous result of Roosevelt’s expansion of executive power was his court- packing plan. Similarly, Roosevelt struggled with Article III as Theodore did; however,

Theodore did not come up with a proposal to change the system, as Roosevelt did. He felt that they were blocking his New Deal and came up with this strategy that would “add a new to the Court for each justice over the age of seventy” (Pederson, 416). This would give Roosevelt the chance of adding up to six justices on the Supreme Court, but his plan was shut down.

Ironically, even though this plan was blocked, the Supreme Court in West Coast Hotel Co. v.

Parrish, 300 U.S. 379 (1937) and NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) reached decisions in both cases similar to legislation of the New Deal. Thus both of these cases and several other cases came about helping to justify the New Deal: Helvering v. Davis, 301 U.S.

619 (1937), Wright v. Vinton Branch, 300 U.S. 440 (1937), and Virginia Railway v. Federation,

300 U.S. 515 (1937). All of these cases could be applied to Roosevelt’s proposed legislation, upholding his notions in the New Deal. In this manner, Roosevelt sought to expand executive power like it has never been done before, perhaps event encroaching on the separation of powers, but was immediately struck down in doing so. Ultimately his plan still came into action by the

New Deal being ratified, and he appointed eight justices to the Court – the first to do so since

George Washington.

Technology also played a part in the expansion of executive power. With the development of the radio Roosevelt magnified the bully pulpit with his , per his implied powers. By being able to speak directly to his citizens he was able to advocate his political agenda right to the public, being able to get their approval. During his re-election, he advocated the New Deal over the radio, acting as a sign of hope for Americans, leading to his re- election; “—the fireside chats boosted the public’s confidence (and Roosevelt’s approval rates) Spokane 13 and undoubtedly contributed to his unprecedented number of election wins” (Fireside).

Throughout his presidency, he spoke among many issues in the Fireside chats which “ranged from…the New Deal, drought and unemployment, to Europe’s battle with and American military progress in Europe and the Pacific during World War II” (Fireside). He spoke to the public as if he was directly speaking to each person and empathized with them, winning over their hearts. Roosevelt’s relationship with the press effectively worked to his advantage, by helping him gain Congress’s approval on his legislation.

The ultimate expansion of power for Roosevelt only was his twelve years in office. Up until Roosevelt it was an assumed tradition for the president to only serve two terms, but the

Constitution did not explicitly say you could not serve for more, making it constitutional to serve four terms. Roosevelt did not have the intention of serving for a third term, as he gave that impression in his Fireside Chat on June 24, 1938 when he said nothing about re-running and was referring to a Democratic candidate, not himself (Fireside). Later, Roosevelt stated that he would only run if “things get very, very much worse in Europe” (Pederson, 419), and as things escalated America elected him to his third term. World War II was not improving, so Roosevelt ran and was elected for a fourth term, and claimed he did so out of duty: “Reluctantly, but as a good soldier, I will accept and serve this office, if I am ordered to do so by the Commander in

Chief of us all—the sovereign people of the United States” (Pederson, 421). This quote shows how Roosevelt did not act as a dictator, even though he was president for four terms, he still looked to the public for approval and respected the separation of powers (most of his presidency). Roosevelt expanded executive power by serving four terms, but shortly after his death an amendment was added to the Constitution limiting presidents to two terms, leaving this expansion of power only to Roosevelt himself. Spokane 14

With the crisis of World War II, Congress declared that the president could “forbid the sale of articles of war to nations engaged in armed conflict” (Pederson, 418). The company

Curtiss-Wright Export Corporation felt that this was a violation of their rights and went to the

Supreme Court. The Court upheld Roosevelt’s power in U.S. v. Curtiss-Wright Export

Corporation, 299 U.S. 304 (1936), declaring “—that in addition to wielding the enumerated and applied powers, the president could exercise inherent powers in the realm of foreign affairs under

Article II” (Pederson, 418). The Court allocated more power to the president, granting him more expansive powers than any past president. Now, in matters regarding foreign affairs, the president could legally take away rights from a private company, hindering their sales—for security of the nation. In this opinion, Justice Sutherland declared the president of “the sole organ of the federal government in international relations” (Pederson, 419). This verdict upheld

Roosevelt’s procedures, along with those of his predecessors, specifically Wilson’s decision of armed neutrality without Congress’s approval. This ruling is one that made a great impact on the nation as it is still upheld and exercised today.

Before the United States entered World War II the United Nations was formed by

Roosevelt and the British Prime Minister, Winston Churchill. The United Nations was based on

Wilson’s League of Nations, but Roosevelt took Wilson’s league and mended it, so it would not be as weak and made it into something new that the United States could join. Roosevelt did so by gaining congressional support and “aimed to include a wide range of administration and elected officials in its effort to establish the proposed United Nations” (United States). This achievement still persists with the United States and many other nations today, disallowing another world war.

Although this act did not grant Roosevelt more executive power, he did this through his pragmatic approach and learned from Wilson’s mistakes. This gave Roosevelt and following Spokane 15 presidents a new duty to uphold, bestowing additional power presumed to the executive.

Roosevelt greatly benefited the nation with the addition of the United Nations.

Moreover on Roosevelt’s worst exercise of executive power subsequent of an executive order. Following the , the United States became paranoid of another strike, and Roosevelt reacted excessively causing the rest of the nation to also overreact. To “protect” national security, “FDR, as commander in chief, issued which empowered military commanders to issue curfews and establish temporary ‘assembly centers’ for Japanese

American citizens” (Pederson, 420). Americans were outraged by this, but the Supreme Court declared it constitutional under the president’s war powers and emergency powers. This issue on

Japanese Americans was not directly discrimination, but it acted like it, indicating one of

Roosevelt’s few mistakes. Over his presidency Roosevelt was given much power, with almost no conflicts, leading him to be blinded by the power, and this decision reflected poorly upon him.

Another major executive order that Roosevelt put in place was Executive Order 8773, which he did so under his Commander in Chief powers. The order declared that if the workers at

North American Aviation did not return to their jobs, then he would seize the factory and the

Secretary of War would take charge of the plant. This order brought the workers to end their strike and go back to work. Roosevelt acted in a manner of national security because of the bombing of Pearl Harbor and the fact that World War II was negatively progressing. Knowing that the United States would soon join, Roosevelt needed to make sure the country would be able to defend itself, “citing the importance of aircraft production” (Pederson, 420). Following the seizure of multiple steel companies, the case Youngstown Sheet & Tube Co., 349 U.S. 579

(1952), took place and the Supreme Court declared that Roosevelt’s executive order was unconstitutional as it was not permitted by the Constitution or from an act of Congress Spokane 16

(Youngstown). For a president to declare an executive order, the order must follow a provision of the Constitution. Roosevelt has issued the most executive orders of any president, a total of 3,734

(O’Neill), and was able to declare them under his constitutional and inherent powers, and could do so in the name of protecting and serving the nation – especially in times of crises.

Shortly after entering World War II the Senate and House of Representatives allocated more power to the executive with the War Powers Act of 1941. The document articulates that,

“—the President is hereby authorized to make such redistribution of functions among executive agencies as he may deem necessary, including any functions, duties, and powers hitherto by law conferred upon any executive department…” (U.S. House, 2). This act gave more power to the president to reorganize the executive branch, so he could adequately conduct war with no interruptions. This was an accomplishment for Roosevelt as he did not necessarily need

Congress’s approval to make quick decisions during war. Thus another moment where Roosevelt expanded executive powers during his presidency.

Summary of Roosevelt

All in all, Roosevelt’s personal beliefs and those of his predecessors, Lincoln, Roosevelt, and Wilson all helped shape his pragmatic approach to the Constitution and his view on executive power. Roosevelt had thirty-one presidents come before him and had the privilege of looking to their decisions and precedents to form his own opinions. Roosevelt took ideas from his predecessors and formed them into better, more advanced legislature that benefited the entirety of the nation. His presidency exhibited his notion that if the Constitution did not say he cannot do something, then he could do it, demonstrated by his actions and decisions that expanded the executive power. Unlike Madison, he took a different approach to vetoing bills, vetoing anything he did not agree with, leaving him with 635 vetoes throughout his presidency Spokane 17

(Vetoes). Roosevelt handled two crises, and while doing so he created a better connection to the public through his bully pulpit and took presidential powers to a new level. Through Roosevelt’s role of the head of the state, head of the government of the United States, and Commander-in-

Chief he was given expressed, implied, and inherent powers. When facing crises he looked to his ability to create programs, agencies, executive orders, his war powers, and emergency powers.

Roosevelt was justified by the legislature and judiciary in making such expansive decisions, enlarging the executive’s power.

Comparing Madison and Roosevelt

Madison and Roosevelt both were strong, respectable presidents who kept the nation going in times of crises. They exemplified different strategies and interpretations of the

Constitution, but nonetheless got the job done by protecting the nation. Madison’s biggest challenge was the War of 1812, while Roosevelt faced the downfall of the economy and a dictator attempting, and succeeding taking over western Europe, while also facing surprise attacks by Japan; all giving him more opportunities to expand his power. The differences in their threats indicate that Madison did not think he needed to expand his powers and could regulate war with his expressed powers, while Roosevelt, dealing with more crises, believed he needed to expand his powers to get America through its hardships. As time progressed the nation expanded and with that came more responsibilities that were not outlined in the Constitution.

In the beginning of Roosevelt’s first term he had a remarkable relationship with congress as they agreed with his agenda. The country was in devastation and the federal government knew they needed to work together, so Congress agreed with most, if not all of Roosevelt’s legislation.

As he reached for more executive power with the Brownlow Committee and the Court-Packing

Plan, Congress’s approval decreased. In the time of urgency he struggled with the Supreme Spokane 18

Court and could not get his legislation passed that would benefit the nation, but in time his strategy passed and he helped restore the broken economy. Madison carefully made decisions in order to not encroach on the separation of powers. The fact that Madison did not infringe on the powers of the legislature or judiciary, shows how smoothly his presidency was, specifically in having Congress’s support to go to war. The difference in the number of vetoes and executive orders also show how executive power has been shifted from the original intent.

While Madison was president he knew the meaning and “correct” interpretation of the

Constitution as he helped write it, but Roosevelt had a number of president’s before him that changed the original intent. Lincoln was the most transformational president, and while putting the nation back together, he had to expand the power of the executive in ways it had never been before. This was the first major precedent set of expanding executive power. Since then expansion has grown overtime, with Roosevelt setting the most impactful precedents, showing how much power can be added. To say that there is a “right” way to interpret the Constitution would be ignorant, but when expanding the powers of the Executive, it must be interpreted with ambiguity:

Such ambiguity is perhaps befitting of a president whose understanding of America’s founding and its Constitution was based on a notion that the government is made to adapt to changing times—with the chief executive leading the way—as opposed to the more restrained notion of governmental power so esteemed by the founders (Ambar, 367-8).

Too Much Power?

Referring to Hamilton’s idea of the energetic executive, both Madison and Roosevelt looked to this concept during their presidencies. Having a good, strong executive makes the nation as a whole appear stronger. In times of crises, Madison with the War of 1812 and

Roosevelt with the Great Depression and World War II, having an energetic executive was Spokane 19 necessary in overcoming these battles. But is there a point when the executive is exerting too much power?

The interpretation of Article II’s executive power has grown over the decades and no longer aligns with the founding father’s original intent. They intended for Congress to hold the most power, but as presidents faced challenges and crises the power has been shifted. As seen with Roosevelt, the power of the executive has become so heightened that he saw to creating the

Court-Packing Plan, a plan in which the founders would have despised. In this matter it could be argued that Roosevelt was encroaching on the powers of the judiciary, thus violating the

Constitution. Congress appropriately executed their power in shutting down Roosevelt’s plan, if they did not, then that would have set the precedent that any future president could change the court system if they did not agree with their policies. The judiciary looks to the Constitution as the highest law of the nation and if they believe the executive is violating it, it is their duty to say so.

Onto a critic of Roosevelt’s amount of power, Rebecca Curry, in her study on the expansion of presidential power, argues that Roosevelt administers more of an “imperial presidency,” (46) specifically based on his issuance of the executive order against Japanese

Americans. “Most notoriously,” Curry continues, “executive authority in national security matters has been held to trump important individual rights protections enjoyed by U.S. citizens”

(46). This is an issue that has happened more than once, beginning in 1789 with Adam’s , and is still occurring in more recent presidencies. She believes that “judicial rulings do not seem to make much difference to presidential actions” (Curry, 45), thus emphasizing that presidents are continually gaining too much power that it hinders the separation of powers from presidents not being checked enough. Roosevelt gained the most power of any Spokane 20 other executive, embarking that achievement on the nation, but he also provided an illustration that future presidents may want to follow and likewise reach for more power. Overall though, it can be presumed that Roosevelt did not overreach his executive power as both branches of government did not proclaim that he did so. If Roosevelt did encroach, like he tried to with the

Court-Packing Plan, the legislature and judiciary would have shut him down in doing so.

Another downfall of too much executive power from earlier presidents can be seen in today’s presidents. Because of the power that Roosevelt displayed it led to future presidents wanting to hold the same amount of power, and to also change the government. The most recent president, , exemplified behavior that he was trying to expand executive power to a new level. Supporting that the expansion of executive power is getting out of control, journalist, David Graham writes, “—unless and until Trump actually tries to pardon himself, or refuses a subpoena, or shoots a former official and tries to resist arrest, the actual limits of executive power will remain unknown” (Graham). It can be predicted that with each future president executive power will keep expanding, but when is the stopping point? Is it already too late? Each precedent set by past presidents have given the following presidents a basis to expand their power. With President Trump, he believed he could constitutionally expand his power to the point of creating executive orders for no real legal reason and believed he could possibly self- pardon himself. Compared to his recent predecessors Trump declared more orders than they did in their first terms. It was believed that he used the executive order mainly because of the power that it held over nation – more of a dictatorship position.

Conclusion

Overall, Roosevelt needed to expand executive power as he did, in order to get the country out of the Great Depression and to prepare the United States to go to war. Although he Spokane 21 did make some mistakes from being blinded by the power, most of what he accomplished bettered the nation. Roosevelt was a progressive and forward thinker that led to the New Deal, providing significant programs for the nation that are still in effect today. He changed the notion of federal government by reinstating and faith in America’s economic system. While doing so, he provided an example that future presidents could look to when also in times of emergency. Madison’s approach to executive power was still another effective method, but not remarkable. In the crises that Roosevelt was facing, lesser executive power would not have progressed America through its struggles. As seen with the War of 1812, Madison struggled with the states and their own ways of wanting to conduct the war; if he used more executive power there would not have been a question of following his orders.

It is now perceived that each time a new president is elected that the expansion of executive power comes with it as a duty, as they believe they need to hold the same or more power as their predecessor. This was not the original intent of the executive by the founding fathers, but this is what it has come to due to precedents set. This seems to be negatively impacting the nation, as each time a new president comes they believe it is almost a duty to expand their power. As stated before, Roosevelt and Madison needed to expand their powers and when they did so, it greatly benefitted the nation, but there is now a point where executive power cannot continue to expand. This gives the impression that all future presidents can use executive power to their benefit, for any reason. To propose a way to discontinue this increasing of executive power would be for Congress to more closely monitor the use of executive orders, and create bills to block them. The American people would also have to make the change, and become more knowledgeable of the original intent and structure, and demand the government to reform so the United States does not become a dictatorship. Spokane 22

Works Cited

Ambar, Saladin M. “Woodrow Wilson.” The Presidents and the Constitution: a Living History,

edited by Gormley, Press, 2016, pp. 357-68.

Bader, William D. “Theodore Roosevelt.” The Presidents and the Constitution: a Living History,

edited by Gormley, New York University Press, 2016, pp. 331-51.

Curry, Rebecca. “Institutional Rivalries in Presidential War Powers Cases: A Political

Perspective on the .” President or King? Evaluating the Expansion of

Executive Power from Abraham Lincoln to George W. Bush, edited by Meena Bose,

Nova Publishers, 2011, pp. 43-61. ProQuest Ebook Central,

https://ebookcentral.proquest.com/lib/duquesne-ebooks/detail.action?docID=3021820.

Gormley, Ken. “Introduction.” The Presidents and the Constitution: a Living History, New York

University Press, 2016, pp. 2-10.

Graham, David A. “The Strangest Thing About Trump’s Approach to Presidential Power.” The

Atlantic, 7 June 2018. https://www.theatlantic.com/politics/archive/2018/06/the-

strangest-thing-about-trumps-approach-to-presidential-power/562271/, Accessed 20 Apr.

2021.

“James Madison.” History, A&E Television Networks, https://www.history.com/topics/us-

presidents/james-madison, Accessed 27 Apr. 2021.

Ketcham, Ralph. “James Madison.” The Presidents and the Constitution: a Living History,

edited by Gormley, New York University Press, 2016, pp. 61-71.

Madison, James. “Eighth Annual Message.” UVA Miller Center, 3 Dec. 1816,

https://millercenter.org/the-presidency/presidential-speeches/december-3-1816-eighth-

annual-message, Accessed 27 Apr. 2021. Spokane 23

Madison, James. Federalist No.10: “The Same Subject Continued: The Union as a Safeguard

Against Domestic Faction and Insurrection.” New York Packet, , 23

Nov. 1787, https://guides.loc.gov/federalist-papers/text-1-10

Madison, James. Federalist No. 51: “The Structure of the Government Must Furnish the Proper

Checks and Balances Between the Different Departments.” New York Packet, Library of

Congress, 8 Feb. 1788, https://guides.loc.gov/federalist-papers/text-51-60

Madison, James. Federalist No.63: “The Senate Continued.” Independent Journal, Library of

Congress, 1 Mar. 1788, https://guides.loc.gov/federalist-papers/text-61-70#s-lg-box-

wrapper-25493450

Murrill, Brandon J. “Modes of Constitutional Interpretation” Congressional Research Service,

2018, pp. 18-22.

O’Neill, Aaron. “Number of executive orders signed by U.S. presidents 1789-2021.” Statista, 24

Mar 2021, https://www.statista.com/statistics/1125024/us-presidents-executive-orders/,

Accessed 15 Apr. 2021.

Pederson, William D. “Franklin Delano Roosevelt.” The Presidents and the Constitution: a

Living History, edited by Gormley, New York University Press, 2016, pp. 409-423.

Powell, Jefferson H. “The Original Understanding of Original Intent.” Harvard Law Review, vol.

98, no. 5, Mar. 1985, pp. 885–948. EBSCOhost, doi:10.2307/1340880.

Roosevelt, Theodore. Theodore Roosevelt: An Autobiography. New York, The Macmillan

Company, 1913. https://www.bartleby.com/55/10.html

“The Fireside Chats.” History, A&E Television Networks, https://www.history.com/topics/great-

depression/fireside-chats, Accessed 14 Apr. 2021. Spokane 24

“The United States and the Founding of the United Nations, August 1941-October 1945” U.S.

Department of State, https://2001-2009.state.gov/r/pa/ho/pubs/fs/55407.htm, Accessed 14

Apr. 2021.

The United States Constitution and Declaration of Independence. Bill of Rights Institute, pp. 9-

13

U.S. House. 77th Congress. 1st Sess. H.R. 6233, Coordination of Executive Bureaus, 15 Dec.

1941. Available from https://www.visitthecapitol.gov/exhibitions/artifact/hr-6233-bill-

expedite-prosecution-war-effort-first-war-powers-act-december-15, Accessed 15 Apr.

2021. “Vetoes, 1789 to Present.” ,

https://www.senate.gov/legislative/vetoes/vetoCounts.htm, Accessed 1 Mar. 2021.

Youngstown Sheet & Tube Co., v Sawyer 343 U.S. 579 72 S. CT. 863 (1952). Legal Information

Institute, https://www.law.cornell.edu/supremecourt/text/343/579