"L'etat, c'est moi!" Teddy Roosevelt crowning himself on the cover of Puck Magazine. Credit: Library of Congress.


The uses & abuses of executive power

With Republicans expected to gain seats in the House and Senate, it looks like President Obama will cap off his time in office with more gridlock. But if Congress can’t act, he says, he’ll use executive authority to sidestep the legislative process on key issues, like immigration reform and the use of force against Islamist extremists.

Obama’s detractors have accused him of being an “imperial” president. It’s a theme that runs through the course of American history. Call it tyrannophobia — the fear that any one person or party could wield too much power over the body politic. But also: a strange, even paradoxical fascination with strong leadership. So this time on BackStory, we ask how perceptions of authoritarianism in the United States have changed over time, starting with the earliest colonial revolts of the 1700s against strong-arm agents of the British crown. Are wars a slippery-slope to unchecked presidential powers? Why does Congress complain about executive orders, while passing laws that grant the president so much power? And why were so many of the most renowned presidents also seen by many in their day as dangerous, even tyrannical?

This episode and related resources are funded by a grant from the National Endowment for the Humanities. Any views, findings, conclusions, or recommendations expressed in this {article, book, exhibition, film, program, database, report, Web resource}, do not necessarily represent those of the National Endowment for the Humanities.

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PETER: This is BackStory. I am Peter Onuf.

GREG ABBOTT: Our constitutional structure does not work when the president is untethered from the law. That is what has happened here.

PETER: That’s Texas Attorney General Greg Abbott this week. He was announcing a new lawsuit by his state and 16 others that accuses President Obama of overstepping his authority with this recent executive action on immigration. At the same time, Obama is receiving criticism from some on the left that he’s overstepping in matters of foreign policy.

BRUCE ACKERMAN: It is very bad to leave to one person the decision to make endless war.

Today on BackStory, the deep roots of American fears about monarchical presidents. We’ll look at how they played out around FDR, Lincoln, Jackson, and John Tyler, who savaged for daring to even call himself President. The specter of executive power unbound today on BackStory. Don’t go away.

Major funding for BackStory is provided by an anonymous donor, the University of Virginia, the National Endowment for the Humanities, the Joseph and Robert Cornell Memorial Foundation, and the Arthur Vining Davis Foundations.

From the Virginia Foundation for the Humanities, this is BackStory with the American Backstory hosts.

BRIAN: Welcome to the show. I’m Brian Balogh.

PETER: I’m Peter Onuff.

ED: And I’m Ed Ayers. We’ll begin 75 years ago this past summer. That’s when President Franklin Delano Roosevelt stood before the press and casually announced that he was moving Thanksgiving. Now the last time a president had meddled with a date of the holiday was 75 years earlier. That’s when Abraham Lincoln proclaimed it would fall on the last Thursday of November.

But in 1939, the last Thursday fell at the very end of the month, and retailers were concerned that that would compress the Christmas shopping season. And so FDR bumped Thanksgiving up a week earlier with the idea that the depression-ravaged economy could use those few extra days of buying presents. No big deal, right? Think again.

SENATOR STYLES BRIDGES: I wish Mr. Roosevelt would abolish winter. Millions of people can’t enjoy their vacations for thinking that in a few months they will again be paying tribute to the fuel barons.

ED: Those are the words of Senator Styles Bridges, Republican, of New Hampshire. He was one of many critics on the right who claimed that FDRs Thanksgiving Proclamation amounted to the executive overreach. Letters poured in from concerned citizens around the country.

SHELBY BENNETT: Mr. President, I see by the paper this morning where you want to change Thanksgiving Day to November 23rd of which–

ED: This missive came from one, Shelby Bennett of Shinnston, West Virginia.

SHELBY BENNETT: Now, there are some things that I would like done, and I would appreciate your approval. One, have Sunday changed to Wednesday. Two, have Mondays to be Christmas. Three, have it strictly against the will of God to work on Tuesday. Four, have Thursday to be payday with time and 1/2 for overtime. Five, require everyone to take Friday and Saturday off for a fishing trip down the Potomac.

ED: The sarcasm ran deep. Atlantic City’s mayor, a Democrat, dubbed the president’s proposal, Franksgiving, and it was parodied on the radio and on the big screen. Here’s The Three Stooges short from 1940.


-Where is everybody?

-Maybe it’s the Fourth of July.

-The Fourth of July in October?

-You never can tell. Look what they did to Thanksgiving.



ED: Many Americans refused to budge. 22 states kept Thanksgiving’s traditional date on their books. A few states played it down the middle deciding to observe both the old and the new Thanksgivings.

PETER: So you may be asking, why all the fuss about a little date change. Well, for one it messed up people’s calendars. Football games would have had to be rescheduled, and people weren’t too happy about that. But there was a larger issue.

In his six and 1/2 years in office, FDR has issued well over 2,000 executive orders. That amounted to almost one per day, more than any president before or after. And he had even attempted to pack more justices onto the Supreme Court, so that his laws would not be overturned. To FDR’s critics, Franksgiving was just the latest in a long line of unilateral declarations by the president.

Or as FDR’s erstwhile election opponent, Alf Landon, put it.

ALF LANDON: Another illustration of the confusion which impulsiveness has caused so frequently during his administration. If the change has any merit at all, more time should have been taken working it out, instead of springing it upon an unprepared country with the omnipotence of a Hitler.

PETER: Franksgiving remained in place the following year as well, but by 1941 it was clear that moving the holiday wasn’t having the desired economic impact. In November of that year, FDR signed a joint resolution by Congress setting in stone the fourth Thursday of November as Thanksgiving Day.

BRIAN: There’s little doubt that Americans like their Thanksgiving football, but it’s also fair to say that the ferocious response to Franksgiving indicated a far deeper anxiety. It’s an anxiety about the proper role of the president in a democratic republic, and that’s an anxiety that’s been there since the beginning.

PETER: Late last month, President Obama announced a sweeping new executive action, that would among other things, exempt up to five million undocumented immigrants from deportation. Obama says he’s taking immigration reform into his hands because Congress won’t, and that he’s well within his legal authority to do so, but leaders of Congress don’t see it that way. They say his action smacks of overreach, and they’re not the only ones.

This week 17 states, lead by Texas, announced they’re suing the Obama administration for violating the constitutional limits on presidential power.

BRIAN: Now many, including the president himself, have pointed out the administration has issued fewer executive actions then most of its predecessors, and yet it seems like everybody’s worried about presidential overreach in this administration. And so today on the show, this is the question we’re considering. What should we make of these outbursts of tyrannophobia, as some political scientists have called this fear of executive power, and do these outbursts expose something about America’s conflicted attitude toward power?

PETER: We’ll begin with a closer look at the charge that Obama is overstepping the limits on presidential powers. Our next guest believes that the outrage is warranted, but that it’s being misplaced. Bruce Ackerman, a Scholar of Constitutional Law at Yale, says that Obama is actually guilty of overreach in matters of foreign policy, not domestic policy.

He points to Obama’s treatment of the War Powers Resolution passed in the wake of US military action in Vietnam and Cambodia. Those interventions were instigated by executive command, and so in 1973 Congress came up with a law to keep presidential war making in check.

BRIAN: The basic idea of the War Powers Resolution is this. The president has 60 days from the initiation of hostilities, that’s a key phrase, to get congressional approval for military action. And if the president doesn’t get the go ahead, he or she has another 30 days to end that conflict.

Bruce Ackerman argues, this timetable has mostly done its job, until recently. Ackerman contends that President Obama first violated the resolution in 2011 with American intervention in Libya. Obama didn’t get authorization from Congress. Instead after the 90-day window had expired, the White House issued a legal opinion, stating that despite bombing a foreign country, the United States was not quote “engaging in hostilities.”

Just a few months ago when the military started bombing the so-called Islamic State, known as ISIL, Obama once again didn’t ask for congressional approval. And this time, Ackerman says, he didn’t even bother offering a legal fig leaf.

BRUCE ACKERMAN: He simply said that the Congress, when it authorized the wars against Al Qaeda and Saddam Hussein, also authorized 13 years later a war against ISIL. It is a tremendous affront to the American people not to have even tried to write a convincing document to support it. This is a breach of the rule of law. You cannot have presidents simply say, I have the authority, letter to follow.

BRIAN: I’m going to push back. Is the institution that’s failed here the Executive Branch and the President, or isn’t it Congress itself? What happened to that powerful Congress that passed the War Powers Resolution in the first place?

BRUCE ACKERMAN: The law says the president has to get out of the White House and organize and get Congress to accent. It just shouldn’t be the president can do whatever he wants unless Congress gets its act together. And it is really odd– or not odd– it’s too bad, let’s put it that way that the Republican leadership is focusing on other issues as if they were paradigmatic cases of abuse. Like for example, President Obama’s recent decision on undocumented immigrants.

BRIAN: Well, let’s just take immigration.


GREG ABBOTT: Is Obama within his legal rights to do what he’s done on immigration, use executive action to prioritize which undocumented immigrants are going to be deported first?

BRUCE ACKERMAN: Absolutely. He has just pushed this issue of how are we going to deal with this big immigration problem that we have, how are we going to deal with it, right onto the agenda. And if Congress doesn’t pass something in the next two years, then this is going to be issue number one or two when we have the 2016 election.

Now that’s just what Abraham Lincoln’s Emancipation Proclamation did. In lots of high school books it says, Abraham Lincoln freed the slaves. This is false. It freed zero slaves. The only place, says Abraham Lincoln, where people are free because of military necessity, I hereby declare that Black people are free wherever I can’t control them.

BRIAN: And that made the connection to the war aims crystal clear.

BRUCE ACKERMAN: That’s right. And Abraham Lincoln’s Emancipation Proclamation then forced the issue onto the agenda. In April 1864, the House of Representatives debated whether we should have the 13th Amendment, which would free the slaves. And you know what they did? They voted no. That propelled this issue into the 1864 election. The Republicans of Abraham Lincoln said, we’re are in favor of the Emancipation Proclamation, we’re in favor of the 13th Amendment, and they won a big victory in 1864. And that’s what convinced the Democrats to change their mind and to propose the 13th Amendment to the states.

BRIAN: If I understand you correctly, you’re saying that in both cases the president is taking action to implement the law operating on their executive discretion, if you will, but in essence saying, Congress, I’m inviting you to come in and deal with this in a more comprehensive way which brings me back to where we started. Congress could overrule the president on foreign action as well.

BRUCE ACKERMAN: Absolutely. But it is very bad to leave to one person, the President of the United States, the decision to make endless war. So far as foreign policy is concerned, it’s up to him to build a domestic political consensus, and that’s core constitutional commitment to the democratic control of foreign policy and a realistic appreciation that Americans, insofar as they’re concerned with politics at all are concerned with domestic politics, especially in the era of the volunteer army. It’s a very wise decision of the framers and of the Congress of 1973 to allocate the burden of responsibility for going to war differently than normal political business at home.

BRIAN: Bruce Ackerman is a professor at Yale Law School. We’ll post his New York Times op-ed about executive power at backstoryradio.org.

ED: It’s time for a short break, but don’t go away. When we get back, fears of a president who seems to think he’s king alters the entire political landscape in America.

PETER: You’re listening to BackStory. This is an executive order. Stay with us.

BRIAN: We’re back with BackStory. I’m Brian Balogh.

PETER: I am Peter Onuff.

ED: And I’m Ed Ayers. In the wake of President Obama’s recent executive order on immigration, and the firestorm of criticism that has followed, we’re talking today about fears of executive overreach. A few years ago a couple of political scientists named Eric Posner and Adrian Vermeule coined the term tyrannophobia to refer to these fears. And we’re devoting today’s show to that phobia’s history in America.

BRIAN: I want to take a moment and dig into our theme, tyrannophobia. To be honest, I don’t really get it. I mean, we have Washington who is remembered for retiring peacefully. He’s followed by this fat guy who has monarchical trappings, but nobody’s going to take John Adams all that seriously. And then Jefferson greets people, not with his scepter, but in his slippers. And we have the world’s first political scientist in James Madison. Who’s going to fear that guy?


PETER: Nice.

BRIAN: Monroe, I don’t even remember what Monroe did. These don’t strike me.

PETER: He had a doctrine.

BRIAN: These don’t–


Exactly. This don’t strike me as the kind of executives who would strike fear into the hearts of Americans. So I have a simple question, Peter and Ed, and that is, why does this fear of executive overreach continue? I mean, what kept it alive?

PETER: Yeah, well, that founding that you’re talking about and those weak constitutional presidents who observed rule of law, are our founders, we revere them. Well, they look different from the contemporaneous perspective. There’s a lot of anxiety. The foundation of this new regime is actually built on quicksand. Ben Franklin says at the end of the Constitutional Convention to the republic, if you can keep it. It’s an experiment. And what is the default? What happens when a Republican government falls? We have the emergence of a strong man.

And I think that fear does not dissipate. In fact, the more the Republican constitutional form of government seems to provide an alternative, the greater the mounting anxiety that one day a military chieftain will come along, and that day is not too far in the future, Ed.

ED: And in the meantime, you know what’s happening during all those benign American leaders, Brian? One word for you. Napoleon.


The Western world is focused on the emergence of this non-king emperor whose power’s built on military power. Well, as it turns out, you may recall there is a War of 1812, sometime around 1812.


PETER: We did a show on that.

ED: And what happens is that out of that, by accident, an America Napoleon seems to rise. Andrew Jackson conquering both the English, the king and his men, and the American Indians. The two big threats to the new American nation.

BRIAN: So why were people more scared of him than Washington? Washington was a military hero. What were they scared of, Ed?

ED: That he was so popular with other people. So he’s a man of the west. We think of Tennessee as being the south, but it’s the west. He’s a man of the frontier. He’s unlettered. He’s dueled, He is big. He’s a horseman. And he refuses to pay attention to niceties like treaties and letters from the President of the United States. And the people of the west say, finally, somebody who is one of us. He’s not overly refined. He’s not another Adams. He’s not somebody with a wig. He’s somebody out there with big boots and a horse and a dueling pistol.

PETER: And, Ed, don’t voters in this period, and particularly Democrats with a careful D, that is the followers of Jackson, see themselves like soldiers following the chief?

ED: Yes, and this army of voters elects him in 1828, so he becomes President of the United states. Then what is a guy who’s risen mainly because of his military prowess and reputation going to do now that he has the reins?

BRIAN: But Ed, my history textbooks tell me then he was a Democrat, that he was all against centralized power.


How could people be afraid of the very guy who wanted to decentralize power in America?

ED: Ooh, what a sophisticated question.

BRIAN: I read a lot of textbooks.

PETER: Yeah, but hold it.


I think the answer there is that Jackson represents the opposition of the people to the entrenched interests, or what they would call in the day, the aristocrats, the John Quincy Adams of the world, who use constitutional government rule of law to thwart the will of the people. I think you’ve got to see this idea of centralized power and democratic power as being one in the same.

ED: And joined with those ruffians on the border are the ruffians inside the city.

PETER: Yes, exactly.

ED: So the Jacksonian coalition is also forged by unions and working men and artisans against the elites who are their own bosses.

BRIAN: And that’s the Democratic Party you just described. Is that right, Ed?

ED: That’s the new Democratic Party that emerges around Andrew Jackson in the 1820s.

BRIAN: As I recall, there was another party.

PETER: Yeah, the Whigs.

ED: And we need to remember, the Whigs take their name from the English party that is an opposition to the King. So if people wonder why we have the Whigs was an H, just because they’re very much looking backward to the English tradition of this fear against the king that Peter introduced at the beginning of this conversation. But this is where the creation of America’s two-party system comes from. It really crystallizes in support of and in opposition to Jackson.

BRIAN: So what’s the record? He’s president for eight years. They called him King Andrew. Is that correct? I don’t see Jackson taking over the country with the military.

ED: Oh man, you’re not paying attention.

PETER: Well, you’re just not a Whig. That’s your problem.


ED: Yeah, that’s right. So let’s try to present it objectively. What does he do? His major policy goal is to dismantle the Bank of the United States, which is the very embodiment of this coordinated, controlled economy that Peter is talking about.

BRIAN: He’s decentralizing power.

ED: Exactly.

BRIAN: This is local control, man.

ED: Exactly. He’s putting the economy in the hands of a bunch of wildcat banks as they are called. What else does he do? He tells the Supreme Court, if they want to try to stop the removal of American Indians he says, great, let them enforce it.


BRIAN: I could see how that’s problematic.

ED: And then when South Carolina threatens to nullify a national tariff, he says, no, you will not, and if you do, I have the power of the military to put this down. So in every way, whether you see it as progressive or not, what he’s doing is consolidating power and the threat of power in his hands.

BRIAN: So I want to return to our original question. I mean, I hear what you’re saying. You’re saying that Jackson really made these latent fears of tyrants, he made them real. I get it. Are you saying that if that particular man hadn’t come out of Tennessee and won that big battle in New Orleans and had the kind of popular– are you saying that tyrannophobia would’ve simply died away slowly?

PETER: No, I think those fears are endemic. They’re out there. And what happens– I think the paradox, Ed, looking forward– is that when the people triumphant, at least symbolically with Jackson’s election, and you keep those people mobilized in the Democracy, capital D, that is the Democratic Party– they’re going to use their electoral power to make sure that the Whigs, the bad guys, the tops, the aristocrats, don’t get back into power. So in a way there’s a party conflict sublimation of this great war–


Between the people and the what later are called the interests. And so the whole point of politics is just to get elected. There seems to be more and more a cynicism about the political process under the second party system, Whigs and Democrats, and that the increasing demoralization leads to a stability in this two party conflict that leads to stasis.

ED: It’s a very benign sort of outcome of this fundamental tension, Brian.

PETER: Until it isn’t.


ED: Yeah, and when does it break? It breaks after you have such a weak president, James Buchanan, that people feel like we’re out of control here. The north creates Abraham Lincoln as a sort of benign Andrew Jackson, somebody who’s going to stand up and say forthrightly what he believes in. And when he does, the south freaks out because now we have another strong executive, and you may recall that the upper south actually secedes when that new President Abraham Lincoln calls for troops to put down the rebels in the deep south.

PETER: The commander-in-chief threatening to use the Army.

ED: They said, we better get out of here before our worst dreams come to pass.

BRIAN: They know a tyrant when they see one.

ED: Exactly.


PETER: In the early hours of April 15, 1965, Abraham Lincoln succumbed to gunshot wounds from the night before. Within hours, Vice President Andrew Johnson had assumed the presidency. Johnson, a southerner with Democratic Party leanings, had big shoes to fill, but it’s safe to say he fell far short of expectations. You may know that he was the first of only two presidents to be impeached, but you probably don’t know why Congress decided to take Johnson down.

MARK SUMMERS: Well, in large part because Andrew Johnson was– I’m sorry to say– a jerk.

PETER: This is Historian Mark Summers from the University of Kentucky.

MARK SUMMERS: He misled people. He deceived people. He deliberately abused people in public, but beyond that, in large part they were afraid of him. By 1868, we’d even imagined it possible, that he might be preparing a military coup d’etat.

PETER: What gave them that impression? Well, even though the war was over, Johnson invoked his War Powers to sidestep Congress and reconstruct the south on his own terms. Those terms included allowing white southerners who had signed a loyalty oath to vote, and even re-elect former Confederate officials to Congress. What he didn’t want was for the southern states to give voting rights to former slaves.

Congress at that point was dominated by Republicans. Southern Democrats had stormed out at the beginning of the war, and those Republicans had a very different vision of Reconstruction. They wanted to legislate harsher punishments for southerners and voting rights for freed men. In less than a year into Johnson’s presidency, this tense relationship took a turn for the worse.

MARK SUMMERS: By early 1866, he was beginning to do something pretty worrisome. Johnson, essentially, is willing to say that Congress is not necessarily a legal body because southern congressmen and senators aren’t represented in it, and therefore, any laws it passes may be unconstitutional on that basis. He did not refuse to sign their laws. He did not. But he made that hint and suggestions that at some point in the future he might do exactly that. Now if you suddenly have a president beginning to declare that maybe Congress is not legal, that’s a frightening thing.

PETER: So that was the threat of usurpation right there.

MARK SUMMERS: That is where they began to get scared. In the 1866 off-year elections, the congressional elections, a lot of Republicans are saying, if the Democrats get enough congressional seats in the north, they’re going to join together with the southerners that aren’t allowed in Congress yet. They’re going to form a separate congress, and Andrew Johnson, as head of the Army, is going to decide which congress to back and which one to push out with bayonets. Which Congress do you think he’s going to wipe out? But when Andrew Johnson makes moves that can be seen as trying to take over the Army– and we know what that means because once you’ve got the Army, you can put the congress out at bayonet point– that’s when Congress feels it’s got to act, and that is when it moves to impeach.

PETER: Yeah, so now it’s not just a general policy orientation. We’re really talking about breaking laws.

MARK SUMMERS: That’s correct.

PETER: And what were the laws, Mark, and what form did impeachment take?

MARK SUMMERS: The specific law that Johnson broke was called the Tenure of Office Act. Under the Tenure of Office Act, a president cannot fire a cabinet officer that has been chosen during his administration. But one of the most important offices is one largely in charge of the Army, that’s the Secretary of War. Edwin M. Stanton, who had been Lincoln’s Secretary of War, a very bullying, tough, talented, devotedly loyal man, an excellent man, held onto that office. So when Johnson wants to get rid of Stanton, he obeys the Tenure of Office Act. He suspends him from office.

The Senate decided Stanton stays in office. The suspension is denied, whereupon Johnson begins to start taking moves to get him thrown out of office anyway. He orders a general call Lorenzo Thomas to eject Stanton from office. Now the moment the word comes that a military officer is there to try to throw Stanton out of office, it puts both Houses of Congress into an uproar. Radical Thaddeus Stevens moves around the floor saying, didn’t I tell you? What good did you’re moderation do you? If you don’t kill the beast, it will kill you.

And so on Washington’s birthday, or the extended session after Washington’s birthday, Andrew Johnson is impeached. About a month and a 1/2 after the trial begins, the vote comes. And on the vote, on May 16, 1868, Andrew Johnson’s conviction falls one vote short of the 2/3 needed because of seven Republican senators who have decided that on that particular article there’s not enough grounds to convict.

PETER: So as you’ve described it, Mark, people were truly anxious– with good reason– because this would seem like the first step toward lawmaking and law enforcement for usurping power generally. So why by the time of the trial had the fear subsided?

MARK SUMMERS: There’s a number of Republicans uneasy about the evidence in this trial. They’re just uneasy, but they’re scared of Johnson. And what will he do if he’s unleashed? What will he do if he’s acquitted? And so what happens is Johnson, he makes them an offer they cant refuse. What he does is he gathers at a dinner party with a few of them, and he basically lets them know that if they let alone, if he’s not convicted, they’re not going to have any problem. He’s not going to overthrow the laws. He’s going to abide by the law of the land. And he does something else. He basically feels out and says, who would you feel safe with as Secretary of War? And it comes down to a general called John Schofield, who’s a friend of General Grant’s. And General Grant– every Republican wants General Grant. I mean, they’re going to nominate him for president. They really trust him, and they should.

PETER: So the substantive outcome of impeachment was to everybody’s satisfaction, more or less. In terms of preserving the Constitution, the low-risk result was let’s cut a deal.

MARK SUMMERS: The system worked.

PETER: So Mark, when you step back and think about the broader implications of this outcome and of Andrew Johnson’s ultimate failure to impose his policy for reconstruction, what does this tell you about the nature of the presidency and the possibilities for executive overreach? You said the system worked. Does that mean that there are some built in limitations on the executive in the end?

MARK SUMMERS: It seems to me that the built-in limitations get less and less all the time. In an age when the president has virtually no administrators, no bureaucrats that he runs of any kind, his power is a lot less. And with no presidential staff, has a lot less. A president with a much smaller Army, and the Army was being reduced very quickly, has much less power.

It seems to me though that any president that stretches much further from the powers than his predecessor is going to run into trouble. And Andrew Johnson may, compared to Lincoln have looked restrained, but for peacetime presidents, he goes way beyond what any other president had done before. And that was frightening.

I mean, maybe 100 years from now we may live in a presidency where people say, well, the president declared war on his own. He sent troops on his own. He bombed Baskerville and portions of Alabama back into the Stone Age. I mean, what’s the big deal about that? We all do it. But precedent really builds up in increments. What we find acceptable, and what they found acceptable in Johnson’s time was way less than the stuff Johnson did. And no president for the rest of the century is going to act the way he did. They’re going to be a lot more careful, a lot more deferential to Congress.

PETER: Mark Summers is a Historian at the University of Kentucky. He’s the author of The Ordeal of the Reunion, a new history of Reconstruction.


ED: It’s time for another break, but stay with us. When we get back, what happens when Congress doesn’t want to admit that the president is the president?

BRIAN: You’re listening to BackStory. We’ll be back in a minute.

We’re back with BackStory, they show that takes a contemporary topic and considers its roots through three centuries of American history. I’m Brian Balogh, and I get to speak for the 20th century.

ED: I’m Ed Ayers, representing the 19th century.

PETER: And I’m Peter Onuf, standing in for the 18th century.

We’re talking today about fears of executive overreach through the centuries. We’re looking at a few times when the president has been seen to skew the balance of power among the three branches in his favor.

BRIAN: Ed, Peter we’re talking about the extension of executive power, so I order you both to leave.


So I can take over–

PETER: All right, Boss!

BRIAN: The microphone. And here’s what I would say if you guys left.

ED: I want to vote on it, Peter. Let’s have democracy.

PETER: Well, I’d say each microphone has got equal power in this division of power.


BRIAN: Here’s what I’d say if I were able to order you out of the room. I would say, this is a no-brainer. The reason that throughout the 20th century presidents are charged with executive overreach, especially after World War II, is they have a lot more power. And the reason they have a lot more power is the American people want them to have a lot more power. And the reason the American people want them to have a lot more power is they don’t want to get blown up in their sleep. They don’t want to get exposed to contagious diseases and things. I’m sorry. I don’t want to pull the 20th century thing on you, but things move faster.

Let’s just take one example that no one argues about. Nobody disputes that if we are attacked with nuclear weapons, the president makes the decision. He makes it within 10 minutes, and nobody ever says, oh, that’s executive overreach. We really should consult with Congress on that. We should have a deliberative democracy. What about the three branches–

PETER: Ooh, the three branches.

BRIAN: Of government with these incoming nuclear missiles.


What would the Supreme Court? And that is a pure function of history, technology, the speed at which things move today. End of conversation.

PETER: No, Brian.


I’m afraid you’re all wrong.


This idea of an all-powerful executive that’s got the future of the world– well, they didn’t have nuclear wars in the 18th century– I’ll grant you that much. There are no buttons to push.

BRIAN: I’m glad I pushed your button, Peter.

PETER: You did push my button. The fundamental need for security has shaped attitudes towards executive power from the very beginning, from before the beginning in American history. The reason there is a revolution– get this down– is that the king, who was supposed to–

BRIAN: I have my quill.

PETER: Yeah, you got it?

BRIAN: I have my quill.

PETER: The king is supposed to protect his subjects. You owe allegiance to the king. That you might call a protection covenant. I give my allegiance, my loyalty, to you because you protect me. Americans were protected in the colonial period by the enormous power of the British state on the seas and in land wars. It’s George III’s alleged betrayal of that trust, of that executive responsibility, that leads to the Revolution. It’s a revolution against executive authority, but it’s on behalf of a conception of empire of the United States that depends on executive authority.

Because the first thing to keep in mind is you’ve got to make a war in order to win your independence. That war is the ultimate exercise of executive authority. And guess who’s in charge of this thing? It is gorgeous George Washington, and he becomes the Republican equivalent of a king.

If you want my version of American history, it is Americans have always wanted it both ways. They want what only an executive can give, and that is protection. And then they want liberty. They want rights, which is immunity from the power of that executive.

ED: So let me make sure I understand this. So Brian, you’re saying that, of course, we need a stronger and stronger executive because there’s more and more things to execute, that the machinery is bigger and faster.

BRIAN: Well said.

ED: Peter’s saying, oh come on. It’s always built in. Its there from the beginning. We’re fundamentally ambivalent about this. We want Dad, and we don’t want Dad. And it’s funny that you could both be equally wrong.


Because let’s think about it. Let’s do a quick quiz. What president had, by far, the greatest share of the power that the government had in toto?

BRIAN: It has to be Abraham Lincoln. You didn’t jump into the breach.


ED: So I will answer the question for you.

BRIAN: Even I would agree that’s right for a moment in time.

ED: Well, exactly, because it’s the greatest crisis that the nation’s faced as you were saying, Brian. And as you’re saying, Peter, is that we are looking to Dad when things are falling apart, and things never fell apart as much as in the great Civil War.

But here’s the thing about Abraham Lincoln that complicates this. One, he met determined opposition from the moment he became president until the day he was assassinated. And by opposition, I don’t just mean the Confederates, I mean in his own nation, the United States. The amazing thing is Lincoln won 45% of the vote in 1860, and he won 45% of the vote in 1864, after all of the great accomplishments of the Civil War, including the Gettysburg Address, the fall of Atlanta, the fall of Shenandoah Valley. He could still not persuade half the population. And they said the hardest things about him that have ever been said about any president.

So it suggests that he’s both exercising all of this tyrannical power, winning this war, and at the same time there’s still a crisis of legitimacy attached to somebody who would exert that much power. And he was criticized mainly for usurping too much power.

The other thing that complicates Lincoln as the answer to all questions associated with this, unfortunately, is that that power receded with remarkable speed after Lincoln. And for the next 1/2 century, we have a long series of the weakest presidents in American history. So Brian, help me. Where do we go from there then?

BRIAN: We go back to what you said originally, Ed, which is that Lincoln was truly exceptional. The biggest disjuncture between presidential power and the norm that was accepted about presidential power before the war and before Lincoln assumed these extraordinary powers.

Let’s compare him, for instance, to FDR, Franklin D. Roosevelt, generally seen as a very powerful president. But if we return, if you were paying attention, Ed, to what I said at the beginning of this conversation, the 20th century is different because the State is growing, because things need to be done quickly, because there isn’t time for deliberation. FDR is not seen– notice I didn’t argue with you– FDR is not seen as the president with the most extraordinary powers. So even though he deals with the crisis of the Great Depression, even though he deals with World War II, he does not receive the kind of criticism during those crises that Lincoln does because he is not as out of step with his times as Abraham Lincoln was.

ED: He actually builds his electoral coalition over time.

BRIAN: Exactly.

ED: It becomes stronger, deeper, and wider.

BRIAN: And when does he get in trouble? He gets in trouble when the crisis subsides. He gets in trouble in ’38 when people are feeling a little more secure economically. He gets in trouble as the war comes to the end, as people begin to wonder about his negotiating with Stalin and the deal at Yalta, when the war is over, when they’re feeling a little safer. So I think that, Ed, unwittingly of course, you really put your finger on things. The Civil War and Abraham Lincoln, the combination of the two, were really exceptional.

I concede that when it comes to executive power in the 20th century, it’s really a more mundane story.

ED: It’s routinized.

BRIAN: Its routinized. FDR builds this machinery of the bureaucracy. It stays there.

PETER: But those fears of tyrannical power in the executive do resurface.

BRIAN: They do.

PETER: And it’s precisely because of doubts, pervasive doubts, about this existential crisis, and about the fact that the United States is at risk and the people are at risk.

BRIAN: I agree, Peter. But I would say, at least in the 20th century, they tend to resurface when we’re feeling pretty cool.

PETER: Right, I agree.

BRIAN: When we’re feeling pretty safe.

ED: We can afford to be paranoid.


BRIAN: That’s exactly right, and we can afford to worry about Daddy throwing his weight around.


ED: This hour we’ve been hearing stories about fears that the president has too much power and debates about the constitutional limits on that power. Now we’re going to turn to anxieties about the person beside the president and talk about perceived overreach by the first lady.


BRIAN: In 1993, Bill and Hillary Clinton thought the American people were ready for a strong, high-powered first lady. On the campaign trail, they proposed a two-for-one special. A vote for Bill was a vote for Hillary, too. The idea that Hillary might act as a co-president made Americans more than a little nervous, and those jitters showed up quickly on the evening news.


MALE SPEAKER: The question many Americans are asking is, what kind of first lady will she be?

FEMALE SPEAKER: She’ll also have an office among the senior staff, not on the other side of the White House where first ladies traditionally work.

MALE SPEAKER: She does not take the role as wife. She takes the role as a participant.

FEMALE SPEAKER: A strong first lady, who involves herself too deeply in policy when she’s not elected, will not be well received by the American people.


BRIAN: And it wasn’t just the news that was absorbing public concerns about Hillary’s role as First Lady. Here’s how an MC mistakenly referred to her just after her husband’s inauguration.


MC: Ladies and gentlemen, the President of the United States, Bill Clinton, and the Vice–


The First Lady, Hillary Rodham Clinton.


BRIAN: In Bill Clinton’s first week in office, Hillary plunged into all kinds of executive decisions.


MALE SPEAKER: First Lady doesn’t fully describe the position Hillary Rodham Clinton holds in the White House. She interviews nominees for the Cabinet. She lobbies on Capitol Hill. She runs the giant task force on health reform.

MALE SPEAKER: Some health care professionals hope that Hillary Clinton will at least follow the guideline for all physicians, the one that says, do no harm.



BRIAN: Hillary wasn’t unique if her ability to elicit anxiety. Lisa Burns, Media Professor and First Lady Scholar, says that there’s a long history in the 20th century, a fear that first ladies will steal authority that’s really meant for their husbands and use it for themselves. That fear is exacerbated because no one really knows what it is that the first lady is supposed to do.

LISA BURNS: That’s a good question that I think most first ladies have been asking for over 200 years.


LISA BURNS: Because there’s no definition of this position anywhere. It’s not in the Constitution. There’s no rule book that they’re given when they start. It’s all a matter of tradition. And a lot of it actually comes from media coverage and from public expectations.

BRIAN: But we’re especially concerned with overreach on this show, so could you generalize about when first ladies tend to be charged with overreaching their powers?

LISA BURNS: The most severe criticism of first ladies is always when they get involved in policy making. And whether they’re lobbying for legislation, whether they’re actually heading up those legislative efforts, that’s when we see, particularly the press, gets very uncomfortable with the first lady all of a sudden moving from the East Wing into the West Wing, and they’re questions about is she the power behind the throne? Is she the one who’s really running things in the White House?

BRIAN: Well, what are some examples of first ladies getting involved with policy, and what do those first ladies do to fight back?

LISA BURNS: Probably the best example from the 20th century is Eleanor Roosevelt. In September of 1941, she actually was the first first lady to assume an official government job. She was named the Associate Director of the Office of Civilian Defense. It basically was trying to prepare the public, wartime readiness, things that the public could do.

And very quickly, Congress started to get concerned. One, they questioned whether civilians should be heading up a government office. Then there started to be a lot of criticism of the people who were being hired through this program, very similar to some earlier New Deal criticism. One congressman actually said that basically the time has passed for boondoggling. If communities wish to organize dancing and calisthenics, I’m sure they can do it themselves without direction from the throne, referring to Eleanor Roosevelt and some of the people that were being appointed in these positions.

So shortly after, there was these criticisms of people who were being hired, there’s a call from Congress for Eleanor to step down. And originally she tells reporters that she’s not going to resign the post, that she has no intention of doing so, but about four days later– and this is in February of 1942– she tells reporters, I realize how unwise it was for a vulnerable person like myself to try a government job. It is a little unusual for the wife of a president to go into an official job, even if she doesn’t get any pay and pays her own travel expenses.

BRIAN: Did she say she wanted to spend more time with her family?



LISA BURNS: But basically, she ends up quitting the position. And the reason she gives is that she thinks the office has a lot of really important work to be done, and she doesn’t want her position in the criticism of it to hinder the work of the office.

BRIAN: Now what do fears of the first ladies overreach of power tell us about larger fears of executive overreach on the part of the president Himself

LISA BURNS: I think there’s always this fear that– one– particularly if someone who’s unelected– we didn’t elect her, we elected him, so who is she to head up health care reform? Or who is she to be taking on an official government role? But what’s interesting, if you look at press coverage of first ladies, particularly their legislative efforts, they often don’t talk about it as an extension of the president’s power. They see it as the power of the first lady, that the first lady is somehow carving out this position for herself. So what’s interesting is their husbands manage to avoid criticism while they have criticism heaped upon them.

BRIAN: Could that be a clever strategy on the part of presidents to deflect criticism, yet get certain things done?

LISA BURNS: It definitely works in that way. In fact, some presidents have specifically done this. A great example is FDR. Roosevelt knew that he could float a lot of ideas through Eleanor. Everybody knew that she was very liberal. And so he would take some of his ideas, particularly for the New Deal plan, and have Eleanor go out and talk about them, and then see what the reaction was. And then, if there was a negative reaction, he could always say, oh well, you know my Mrs. I can’t control her.


LISA BURNS: She has a mind of her own. He said that to the press all the time, that well, you know. So he could distance himself in a way that was really strategic.

BRIAN: Lisa, why not legislate or perhaps even think about a constitutional amendment to give the first spouse a legitimate role, or to turn it around, to legitimate the role of the first spouse?

LISA BURNS: I actually think that would be an excellent idea. Then when these questions come up about overreach, it would be pretty clear. I mean, you could look at that list of assigned duties and say, is this person overstepping their boundaries?

BRIAN: But of course, the president has all kinds of rules for what he can do. There are constitutional restraints. How would crafting a few rules allay fears about first lady overreach?

LISA BURNS: Well, I think that, and of course there are questions of, obviously, the president overreaching his power, of abusing executive authority. But at least when you have these discussions about it, whether it’s on the floor of Congress or whether it’s in the media, you can talk about, again, here are the very clear rules. Although they’re not always as clear. They’re a bit vague. They were also written a very long time ago in some cases. So you can look at those though, and say, these are the parameters, and make a judgment call and make an argument, and show evidence that the person is overreaching. Whereas when you don’t have any kind of definition, it’s much harder. It’s almost saying, well, I don’t like you because.


Well, thank you for joining us today on BackStory, Lisa.

LISA BURNS: Thank you very much for having me.


BRIAN: Lisa Burns is Professor of Communications at Quinnipiac University. Her book is called, First Ladies in the Fourth Estate, Press Framing of Presidential Wives.


ED: If you’re just joining us, this is BackStory, and we’re talking today about fears of presidential overreach throughout American history. Now here at BackStory, we’re fully aware that your first react to the mention of the name John Tyler is not tyrant. In fact, it’s probably, who’s John Tyler?

But BackStory producer, Andrew Parsons, discovered that Tyler faced accusations of executive overreach when he was president in the 18402. Those accusations centered on Tyler’s insistence that he was the president. Here’s Andrew with the story.

ANDREW PARSONS: One night in 1841, John Tyler rose from his bed to find out the President of the United States was dead.

FRANCES PAYNE BOUKNIGHT TYLER: He was apparently awakened at around 4:00 in the morning.

BRIAN: This is Frances Tyler or–

FRANCES PAYNE BOUKNIGHT TYLER: Frances Payne Bouknight Tyler. I’m from Mulberry Hill Plantation, and I married Harrison Tyler.

ANDREW PARSONS: So you would be the granddaughter-in-law of Tyler.

FRANCES PAYNE BOUKNIGHT TYLER: Well, I’ve never thought of it that way, but I think I am.

ANDREW PARSONS: Anyway, the news was a big deal, because Tyler had been sworn in as William Henry Harrison’s Vice President just a month before. Over the course of those 30 days, Harrison had succumbed to pneumonia. Tyler hadn’t even moved to DC. He was still in his home in Williamsburg, Virginia.

FRANCES PAYNE BOUKNIGHT TYLER: Tyler took no chances. He immediately dressed and went to Washington and promptly had himself sworn in.

ANDREW PARSONS: Now anyone in this position would have been in a rush, but Tyler had even more reason to be panicked. No president had ever died in office, meaning no vice president had ever become the president before. And this is important because the language in the Constitution is vague about what to do in this situation. Basically, it says, if the president dies or resigns or is unable to quote “discharge the powers and duties of the set office, the same will devolve onto the vice president,”

Michael Gerhardt is a Constitutional Law Professor at the University of North Carolina in Chapel Hill. He says, no one really knew exactly what that meant at the time.

MICHAEL GERHARDT: The question becomes, what is the words the same mean there? Do they mean the duties, do they mean the office, do they mean both? That language was vague, and a lot of people up until then disagreed over what that language really meant.

ANDREW PARSONS: The first thing Tyler did was meet with Harrison’s cabinet who were calling him acting president, but Tyler had a different idea. He was a lawyer and a political veteran who put forth his own interpretation of the Constitution.

MICHAEL GERHARDT: He’d said to them, I am not the acting president. I’m not the vice president acting as president. I am actually the President of the United States.

ANDREW PARSONS: Tyler took an oath of office and issued an inauguration speech, but this didn’t win him any allies in Congress. The opposition party, the Democrats, had hated him ever since he left them back in the days of Andrew Jackson. His new party, the Whigs, stood in principle against a strong executive and thought Tyler should carry out Harrison’s intentions. Tyler was suddenly in the position that nearly any action he took was interpreted as executive overreach.

MICHAEL GERHARDT: The attacks began early and they happened often throughout his four years in office. He has one of the most heated, intense four years in office of any president in history.

ANDREW PARSONS: Let’s go through the highlights. First, there was the name thing. The House and Senate immediately started pushing through legislation that would officially call Tyler Vice President. People called him acting president, vice president acting as president, and most stinging, his accidency.

MICHAEL GERHARDT: And you can find letters that were addressed to Tyler with all those different forms of addressing him, and he, basically, never responded to anything other than Mr. President or President Tyler.

ANDREW PARSONS: And then there was Henry Clay. He was the powerful Speaker of the House, was leader of the Whigs, and had run for president himself more than a few times. He quickly met with Tyler, assuming that as acting president, Tyler would be a pushover,

MICHAEL GERHARDT: It turns out Clay was dead wrong. Within a very short period of time, actually only a couple of meetings, the two men were yelling each other.

FRANCES PAYNE BOUKNIGHT TYLER: And he said, you Mr. Clay, handle your end of the Capitol Street, and I by god will handle mine.

MICHAEL GERHARDT: It became clear to Clay at that point, my gosh, Tyler’s going to become his own man. Tyler actually thinks he’s President.

ANDREW PARSONS: Which, of course, he was. Within just a few months, Clay organized the Whigs into kicking Tyler out of the party entirely. He became known as the president without a party. And then there was the rest of Capitol Hill. Congressman were enraged whenever Tyler tried to set his own agenda. Their tempers flared each time Tyler vetoed a bill or nominated his own choices for cabinet, a move that was necessary since nearly all of his cabinet resigned over the vetoes.

MICHAEL GERHARDT: What’s going to happen is he will not finish his administration without setting a record for the number of cabinet nominations rejected and the number of Supreme Court nominations rejected. So Tyler’s got battles every direction he looks to the point where there are three different impeachment attempts against him over the course of those four years.

ANDREW PARSONS: So let’s recap. Tyler gets kicked out of this party, has nearly his entire cabinet step down, has three different impeachment proceedings started against him, and can hardly get any nominations through Congress. He is called a dictator and a tyrant, all because he dared to call himself president and challenge the whims of the Whigs. But despite all this acrimony, Gerhardt says the power of the presidency was actually strengthened by the standoff across Pennsylvania Avenue. Every time Congress blew up over a veto or Tyler nominating his own men, he took pains to defend his actions.

MICHAEL GERHARDT: For each one of these exercises of power, Tyler issues what are called protests or proclamations, which are also thought to be really excellent legal documents in which he’s explaining the powers of the presidency. And he’s doing this to the party, the Whigs, who believe the president should be weak, and then each time he does it, it’s like a nail in the coffin of the Whigs because he’s saying to them, your philosophy doesn’t hold water. The president needs to be powerful, powerful enough to stand on his own two feet against the other branches.

ANDREW PARSONS: And Tyler won in the long run. First, he set the precedent of what happens after a president dies, that the vice president not only assumes the duties of the president, but becomes the president. But even more, Tyler’s vision of a president who works with Congress instead of having his strings pulled by Congress, won out.

Near the end of his presidency, John Tyler’s wife, Julia, threw a celebration at the White House. It was packed with all of his political supporters and his enemies, too. It was clear that the president who had lived in political exile by putting his head down and doing his job, at the very least, had garnered the respect of his peers. After the party, says Francis Tyler, Julia wrote a letter to her mother.

FRANCES PAYNE BOUKNIGHT TYLER: And in the letter she said, up until this point, President Tyler has been a president without a party, but last night I gave him a party for 2,000, and 3,000 came. He is now a president with a party.


ED: Andrew Parsons is one of our Producers. We also heard from Michael Gerhardt, author of The Forgotten Presidents, Their Untold Constitutional Legacy.


PETER: That’s going to do it for us today, but as always we’re eager to hear your thoughts. You can send us email at backstory@virginia.edu, or you can leave a comment on our website. And while you’re there, take a moment to help us shape our upcoming shows about the history of shopping in America and about the history of the future.

We’re also on Facebook, Tumblr, and Twitter. BackStory Radio, whatever you do, don’t be a stranger.


BRIAN: Today’s episode of BackStory was produced by Tony Field, Nina Earnest, Andrew Parsons, Kelly Jones, and Robert Armengol. Our Digital Producer is Emily Gadek, and Jamal Millner is our Engineer . We had help from Colie Elhie. Special thanks this week to Anique Dunning at Sherwood Plantations and Eric Posner at the University of Chicago. Our readers were James Scales, Kevin McFadden, and our own Robert Armengol. BackStory’s Executive Producer is Andrew Wyndham.

ED: Major support for BackStory is provided by an anonymous donor, the University of Virginia, the National Endowment for the Humanities, the Joseph and Robert Cornell Memorial Foundation, and the Arthur Vining Davis Foundations. Additional funding is provided by Weinstein Properties, by the Tomato Fund, cultivating fresh ideas in the arts, the humanities, and the environment, and by History Channel, history made every day.

FEMALE SPEAKER: Brian Balogh is Professor of History at the University of Virginia. Peter Onuf is Professor of History Emeritus at UVA and Senior Research Fellow at Monticello. Ed Ayers is President and Professor of History at the University of Richmond.

BackStory was created by Andrew Wyndham for the Virginia Foundation for the Humanities.


PETER: BackStory is distributed by PRX, the Public Radio Exchange.

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