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Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

What Would William Howard Taft Do?

Many thanks for asking me to guest blog this week on what's sure to be one of the most burning questions in Congress and the White House: what would William Howard Taft do?

This is big week in Congress -- for trade policy, antitrust policy (with the Facebook hearings on Tuesday), foreign policy (as the President threatens to send the national guard to the Mexican border), and environmental policy (as Scott Pruitt fights for his job.)

On all these questions, the legacy of President Taft, our most judicial president and presidential chief justice, has much to teach us. In my new book for the American Presidents Series -- the surprising title is William Howard Taft -- I argue that Taft was our most judicial president and presidential Chief Justice. A former federal judge who yearned above all to be Chief Justice, Taft approached every decision as president in constitutional terms. Unlike Theodore Roosevelt, who believed that the president could do anything the Constitution didn't explicitly forbid, Taft insisted that the president could do only what the Constitution explicitly authorizes. For this reason, his inaugural address in March 1909 promised to put Roosevelt's progressive program on trade policy, the environment, antitrust, and foreign policy -- much of it enacted by unilateral executive orders -- on firm constitutional grounds, by persuading Congress to enact it.

Let's begin with trade policy, since farmers today are expressing concern about becoming pawns in a trade war with China. On the question of protective tariffs, Taft was the anti-Trump, insisting that Congress, not the president, had the power to set tariffs, and recommending that Congress lower tariffs (and make up the revenue shortfall with an increase in corporate taxes) rather than acting unilaterally. Taft's refusal to lobby Congress led to a moderate tariff reduction bill that didn't satisfy either the free traders or the protectionists, and helped to contribute to the GOP's loss of the House in 1910 and the White House in 1912. (Speaker Joe Cannon said: "No matter how great an improvement the new tariff may be, it almost always results in the party in power losing the election."). Still, Taft's principled, if politically risky, decision to force Congress to exercise its constitutional responsibilities to set trade policy helped to crystalize a bi-partisan national consensus in favor of free trade that more or less prevailed until the 2016 election.

Throughout this week, I'll argue that Taft's refusal to rule by executive order, and his insistence that Congress exercise its constitutional duty to debate questions like trade policy, foreign policy, and environmental policy is especially relevant at a time when presidents from Barack Obama to Donald Trump have, in the spirit of Theodore Roosevelt, usurped Congress's constitutional prerogatives, claiming that they alone have a populist mandate directly from the people.

Do you agree that presidents today should wean themselves of rule by executive order, force Congress to exercise its constitutional responsibilities, and rediscover the inspiring example of our most constitutional president, William Howard Taft?

I look forward to your thoughts and, in honor of the Facebook hearings, discussing antitrust policy tomorrow.

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  • mad_kalak||

    Lost somewhat is the context of the late 19th Century, early 20th Century, where Democrats were the party of farmers and inflation (Bryan's Cross of Gold speech was in 1896) and that Republicans were the party of the city factory workers who supported tariffs because they helped with cheap English goods coming in to the country. At the time, Europe played the role of China today in sending both its excess workers, and excess production, to America. Reducing tariffs for Republicans at the time would be akin to Republicans passing gun control today, and depending on the tariffs, you might upset the farm vote as well.

  • jsfreason||

    Congressional abdication of responsibility is *the* story of American governance since the Nixon Administration. A lot of this comes from minority party Presidents, but by no means all. Some of it comes from parliamentary stasis in which cross-party comity declines and the tools of delay are employed more often, but not all. And a fair part of it comes from simple buckpassing. There would be no need for Chevron if Congress did what it was supposed to. There would be little need for judicial interpretation of legislation if Congress clarified what it meant. DACA is the best example; when Trump, arguably at his most Taft-like, says I'm cancelling the program but I'll sign one that Congress passes, and we see both parties favoring DACA in principle, we see no progress. And don't get me started on continuing resolutions to fund the gov't.

  • jsfreason||

    Note by the way that Johnson was the last US President to have an high-ranking role in getting Congress to pass legislation before he was President. Since then we have had a sequence of Governors without a lot of Congressional experience. Nixon and Bush Sr. had some congressional experience, but not at the highest echelons of policymaking.

  • BigChiefWahoo||

    Nixon had been a US Senator, hadn't he?

  • An Owl Named Dur||

    I'd say Lyndon Johnson had a high level role in getting Congress to pass legislation.

  • M.L.||

    Obama made quite a few Taft-like statements on the immigration issue, when he repeatedly explained to the radical open borders factions' dismay that he could not do anything on immigration by E.O., other than set enforcement priorities. In the end, he reversed himself and went beyond that with DACA.

  • mad_kalak||

    It's more complicated than that, and it goes back to the Progressive Era and that philosophy of putting more power into the presidency and the Executive Branch in order to get around the messiness of democracy. The ideal model for progressives is what you see in many counties and smaller municipalities today, an elected board to give some version of democracy, but professional public administrators doing 95% of the decision-making with very little input. On a small scale, that system does work, but scaled up for a nation, not as much.

    Further, Congress semi-abdicated by the creation of executive departments staffed with experts, experts that the progressives felt were necessary to run a modern industrial economy. Within less than a century, you had Congressmen playing the middleman/fixer between the agencies their predecessors had created and their constituents. Today this is called "constituent services" and it's a big part of what each member of Congress does to get re-elected. The leverage they have over the agencies is the power of review and the power of the purse, though as Congress has declined over time to hold agencies accountable, and if they have top cover from the Executive Branch, they become less and less responsive. Still, nothing sets federal bureaucrats scrambling like a call from a Congressmen's office.

  • Scarecrow Repair & Chippering||

    It goes back to the Civil War, where abolitionists were glad to have the federal government abolish slavery regardless of price, and other people discovered other missions for the new federal power to accomplish.

    Absent the Civil War, federal power probably would have expanded anyway, as all governments do; but it might have required more time and persuasion.

  • mad_kalak||

    Yes, sorta, but I'm replying to the specific bits about Congress's abdication of its authority and Taft in the OP. It is not just that Congress was not doing it's job in Taft's era, but also that the Executive was simultaneously growing more powerful due progressives in both parties (Teddy was GOP and a progressive). Congress outsourced its authority, but because progressives in both parties wanted it that way. It's not all Congress' fault, besides, they have a collective action problem where a unitary executive doesn't.

    The swirling vortex of the federal government consolidating power from the states goes back to the Constitutional Convention, because if you recall, the convention was originally just supposed to be changing the Articles of Confederation, but as Patrick Henry said, "I smelled a rat" and we got a powerful central government (relatively speaking) out of the situation. As you note, the Civil War did accelerate the process though, because the central reason many supported more power to the states, the preservation of the South's particular institution, was removed after the war.

    We tend to forget these days, when the left/right divide is on cultural issues like trangenders in bathrooms, that for most of American history the left/right divide was on the size & scope of the federal government. This is what Aldrich (a writer on the matter) calls "the great principle", which refers to the discussion about the extension and scope of the federal government.

  • BigChiefWahoo||

    Remember, though, the slavery interests were happy to use federal power when they had a majority in Congress (the Fugitive Slave Act, etc.). It was only after the non-slavery North gained enough population that the slave states were pretty much a permanent minority in Congress that the slavery men adopted States' Rights.

  • mad_kalak||

    Good point!

  • Sigivald||

    On the question of protective tariffs, Taft was the anti-Trump, insisting that Congress, not the president, had the power to set tariffs

    In Trump's not-very-significant defense here, I note that Congress expressly delegated this power to the President (in that they let the President do so by ritually intoning "national security", not that Congress has repudiated its own tariff power).

    I imagine, if someone asked him, that the President would not quarrel with the origin of the tariff power being Congress, not the Executive, identical to Taft.

    If there's a difference, it's perhaps that Taft woudln't have used that power if Congress had given him the option, but that's hard to know.

  • ThePublius||

    Excellent point, and correct I think. I would like to hear Jeff Rosen's response to that.

  • An Owl Named Dur||

    I imagine, if someone asked him, that the President would not have the first clue what they were talking about.

  • J555||

    "In Trump's not-very-significant defense here, I note that Congress expressly delegated this power to the President"

    That seems extremely significant in the context of what promises to be a series of posts by Rosen on presidents "usurp(ing) Congress's constitutional prerogatives", so I don't know why you dismiss it even as you mention it.

  • JonFrum||

    "Do you agree that presidents today should wean themselves of rule by executive order ..."

    Yes. But first, we'd need a roll-back of past executive over-reach. Which is exactly what anti-DACA is all about for me.

  • MatthewSlyfield||

    "Do you agree that presidents today should wean themselves of rule by executive order, force Congress to exercise its constitutional responsibilities, and rediscover the inspiring example of our most constitutional president, William Howard Taft?"

    Yes, but I also think that every congress member who stands up and says "something must be done" should be put on a one-way flight, to Mars.

  • BigChiefWahoo||

    Too many people get themselves elected to Congress to play Santa Claus with other people's money rather than make serious policy decisions. Spending money is more popular.

  • Joe_JP||

    Major point of the parliament was power of the purse.

    The "Santa Claus" point here then becomes a question of detail.

  • BigChiefWahoo||

    "The power of the purse" is the power to NOT spend, the power to deny the executive the funds it needs for its agendas. When spending becomes the principal political appeal of one or both parties in the legislature, legislators are unlikely to actually use that power, so it's more than just a "detail".

  • mad_kalak||

    Exactly. The Speaker of the House Joe Cannon, or "Uncle Joe," that the OP references used extraordinary control over the House that he had to deny funds to the Executive Branch. I wish I could remember where I read the quote, but I believe he said, "People think it's my job to spend money, my job is to not spend money."

  • J555||

    It seems's a bit .... convenient ... that you never wrote this while Obama was tramping Congressional prerogatives underfoot, and announcing that if Congress declines to act on a matter explicitly under its jurisdiction (such as immigration), it empowers the executive to do so.

    "Taft's principled, if politically risky, decision to force Congress to exercise its constitutional responsibilities to set trade policy helped to crystalize a bi-partisan national consensus in favor of free trade that more or less prevailed until the 2016 election."

    Unless you're using that wriggle-phrase "more or less" to steal several bases, this is patently false. After all, Smoot-Hawley was enacted a couple of decades after Taft was in office. And the GOP remained a broadly protectionist party until very recently. Arguably it still is, which is why Trump was elected.

    There's also a separate issue, which is that the trade which the self-styled "free traders" typically advocate for is actually the antithesis of genuine free trade. But for now it would nice if you'd correct the way you're misconstruing the historical record.

  • Alan Vanneman||

    I agree. The historical reasoning here is quite slip shod. Devotion to free trade (or not) is going to be the product of economic factors, which can change dramatically over time, not some sort of abstract devotion to principle. Free trade was popular in the US in the fifties and sixties because American industry was dominant, not because Taft insisted that Congress had to set trade policy itself. Congress could just have easily favored protectionism, if that's what their constituents wanted.

    When he was chief justice, Taft taught Sunday school at the Unitarian Church at 16th and Harvard. To show what nice guy he was, he would let the little girls in the class sit on his knee. According to my mother, about age 10, his belly was so big this required some delicate balancing.

  • gormadoc||

    I find it a bit ... convenient ... that you didn't write this comment about Bush during Obama's time in office.

  • J555||

    First of all, what makes you think that you know what I wrote while Bush was in office?

    Secondly, the topic here is supposed to be Presidents usurping the powers of Congress. Can you cite notable instances of Bush doing this? For that matter, can you cite instances of Trump doing it?

    I've already pointed out one egregious example on the part of Obama - when he decided that since Congress had not done what he, Obama, wanted on immigration, this somehow granted him the power to remake federal immigration policy and law all on his own. And unlike tariffs (which Congress has explicitly granted the President the power to impose) immigration is entirely and solely the jurisdiction of Congress.

  • Eidde||

    Yo' President so fat, you can derive his name by just spelling "fat" backwards and adding another "T."

    Yo' President so fat, they assigned him two zip codes.

    Yo' President so fat, bathroom scales scream in terror at his approach.

    Yo' President so fat, he makes Buddha look like Richard Simmons.

  • Eidde||

    Yo' President so fat, Santa sits in *his* lap.

    Yo' President so fat, when you sense him approaching, you can't tell if it's him or if you're in that scene in Jurassic Park.

  • Eidde||

    OK, fine, makes a laughing Buddha figure look like Richard Simmons.

    And now that I've done some intensive in-depth research, it seems that thin Buddhas are common.

  • loveconstitution1789||

    "...to set trade policy helped to crystalize a bi-partisan national consensus in favor of free trade that more or less prevailed until the 2016 election."

    What planet are you from? The US policy has not been free trade during the 20th or 21st Centuries. Its been managed trade with various politician decisions to increase trade barriers.

    The War on Drugs is one of the biggest US trade barrier schemes in US history.

  • Kazinski||

    I used to be a big admirer of Theodore Roosevelt, until I read his autobiography and Edmond Morris' trilogy, now my feelings are mixed. His instincts were good, but was the biggest proponent of the Imperial Presidency since Lincoln. He didn't much seem to care what the constitutional bounds of the Federal Government were, and set the stage for his cousin's huge expansion of the Federal Government 30 years later.

    He did have the best record on Civil rights of any President between Grant and Eisenhower.

  • loveconstitution1789||

    A big beef among Republicans is that anyone can say they are Republicans and the GOP does not really call any politician on it. T.R. was not a Republican but progressive and more aligned with Democrats. Like all Roosevelts, Teddy was concerned about his Legacy.

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