The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.