The Debate Over Executive Orders Began With Teddy Roosevelt’s Mad Passion for Conservation

In the twilight of his political career, Theodore Roosevelt took his legacy into his own hands. If any Americans had doubts as to whether the former president regretted decisions made in office, Roosevelt was quick to set the record straight in his autobiography, published in 1913: it had been his duty to use as much power as was available to him to do whatever the nation demanded, unless such action was forbidden by the Constitution. “There was a great clamor that I was usurping legislative power… I did not usurp power, but I did greatly broaden the use of executive power,” Roosevelt wrote.  

Over the course of his eight years in office, Roosevelt issued more than 1,000 executive orders, nearly 10 times as many as his predecessor, William McKinley. While many of the orders were clerical or relatively insignificant—such as exempting a civil service employee from mandatory age-based retirement—others had a profound impact on the country. Roosevelt’s special focus was conservation. During his time in office, he quadrupled the amount of protected land (from 42 million acres to 172 million), created 150 new national forests, 18 national monuments, five national parks and 51 wildlife refuges—often with the assistance of executive orders.

“[Roosevelt] was the first president who asserted a broad scope of inherent presidential authority,” says Kenneth Mayer, professor of political science at the University of Madison-Wisconsin and the author of With the Stroke of a Pen: Executive Orders and Presidential Power. “His view was ‘Unless I can’t, I will,’ while Taft’s [Roosevelt’s successor] was ‘Unless I can, I can’t.’”

Ultimately, it was Roosevelt’s strategy that won out, and his legacy has continued to shape how presidents exert power over the nation.

Before jumping into Roosevelt’s fondness for executive orders, a quick reminder of what they are. As Mayer wrote in a paper in 1999, “An executive order is a presidential directive that requires or authorizes some action within the executive branch.” He goes on to say these orders can reorganize government agencies, affect how legislation is implemented, establish policy and alter regulatory processes. Executive orders have covered everything from the mundane (allowing government employees to depart at noon on December 24) to the profound (Lincoln’s Emancipation Proclamation) to the tragic (Franklin Delano Roosevelt’s order to intern Japanese-Americans during World War II). However dramatic their consequences, surprisingly few executive orders have been overturned by the courts; only 16 were overturned through the mid-20th century—though that number is growing following President Trump’s unsuccessful immigration ban.

“The constitution isn’t clear on what the president is authorized to do. The language is ambiguous and there are lots of gaps,” Mayer says. Just look at the wording on war: Congress has the power to declare war, but the president is named the Commander in Chief. Mayer also points to an argument between Alexander Hamilton and James Madison in 1793, when they fought over Washington’s ability to declare the U.S. neutral in a war between Britain and France. The men essentially wrote the Constitution, yet they disagreed about what it meant just a few years after they wrote it.

As for Taft, he undid several of Roosevelt’s executive orders, including removing Gifford Pinchot as forestry chief. When criticized for being anti-conservationist, Taft, who after his presidency would be named Chief Justice of the United States, responded that he was simply following the letter of the law. “We have a government of limited power under the Constitution, and we have got to work out our problems on the basis of law… I get very impatient at criticism by men who do not know what the law is.”

But for many presidents, executive actions are more like a loophole allowing them room for action—if they’re willing to exploit it. And Teddy Roosevelt most certainly was.

“Roosevelt showed that the executive role, if strategically used, can largely be the most powerful role despite a controlling bureaucracy,” writes political scholar Hilary Jan Izatt.

Drawing on the power of executive orders, Roosevelt expedited the Panama Canal construction process by giving the project’s chief engineer decision-making authority. He created multiple commissions, including the National Conservation Commission, which became “the first inventory of natural resources ever taken by any nation.” He issued an order making the Grand Canyon a National Monument under the newly enacted Antiquities Act of 1906, manipulating the act’s language that said national monuments should be “the smallest area compatible with proper care and management of the objects to be protected.” (President Woodrow Wilson later made the Grand Canyon a National Park in 1919, moving it from the jurisdiction of the Forest Service to the National Park Service.) Roosevelt’s regular use of this executive power drew the ire of Congress.

“He had, they said, trodden under foot the constitutional rights of the states and the prerogatives of Congress,” writes historian William Draper Lewis in his biography of Roosevelt. Legislators criticized him for creating national forests inside their states and for abusing the Reclamation Act (which allowed the federal government to control water projects in the arid West, such as building dams and diverting rivers)“He was a new Charles I and [Oliver] Cromwell in one.”

The same criticism continues to be lobbed at presidents who use executive orders. Whether it’s George W. Bush’s blocking of stem-cell research or Barack Obama’s gun control protections and alterations to the Affordable Care Act, there are always detractors who claim the president is turning tyrant. But that’s pretty normal when it comes to executive orders, Mayer says.

“When you have a Republican in office, you have Democrats insisting it’s executive overreach, and vice versa. It’s a function of who’s in office and what people believe that power is being used for.”

So if Roosevelt could transform the West into a patchwork quilt of national parks and protected forests, order government-led commissions, and place his friends and allies in positions of power, does that mean executive orders could be twisted in a way to give a president any power he wants? Not quite.

“The president can’t do anything that’s not part of their constitutional powers or powers that are given to them by Congress. Those ambiguities [in the language of the Constitution] don’t mean there are no limits, it means you can identify generally where those boundaries are, but the specifics depend on the facts of the case,” Mayer says.

And as presidents from Truman (whose attempted seizure of the nation’s steel mills to prevent a strike is a famous example of the courts overturning an executive order) to Trump have learned, the devil is in the details. But far more often than not, that which is committed to paper in an executive order remains in place, its consequences enduring for generations. 

Lorraine Boissoneault | | READ MORE

Lorraine Boissoneault is a contributing writer to SmithsonianMag.com covering history and archaeology. She has previously written for The Atlantic, Salon, Nautilus and others. She is also the author of The Last Voyageurs: Retracing La Salle's Journey Across America. Website: http://www.lboissoneault.com/