President Obama has defiantly hurled a series of challenges at our constitutional system. "I refuse to take no for an answer," he has declared. "When Congress refuses to act … I have an obligation as president to do what I can do without them."
In recess appointments, immigration law, his own healthcare act, and expansions of EPA authority, President Obama has demonstrated a consistent disdain for the separation of powers and the restraint of constitutional government.
His impatience and brazenness, however, are not without precedent. Presidents Franklin Roosevelt and Harry Truman each expressed similar petulance and blatantly overreached their constitutional prerogatives. And in two famous incidents they met spectacular reversals that Americans can still learn from today in defending our constitutional order.
During his first term, Roosevelt had grown frustrated over the Supreme Court's repeated 5-4 rulings that found New Deal legislation unconstitutional. Flushed with his great 1936 electoral victory, FDR believed he could remove the court's stranglehold on his program. In February 1937, he proposed what came to be known as his "court-packing" scheme. Using the flimsiest of pretenses, Roosevelt wanted expand the court from nine justices to fifteen.
This "court packing" proposal galvanized conservative opposition to the New Deal. "The judicial department has always been and must always be absolutely independent of the legislative and executive departments," Senator Josiah W. Bailey, Democrat of North Carolina, complained. "Governments exist upon popular confidence, and confidence in the courts is fundamental."
In a series of nationally broadcast speeches, Bailey rallied public resistance to the measure and led a conservative uprising in Congress within FDR's own party, aided of course, by the Republicans.
When Democratic Senate Majority Leader Joseph Robinson brought the bill to the floor, it was Bailey who rose in response. The Senate floor fell silent, and in Robinson's words, "that rare thing, a successful and convincing argument was being made on the Senate floor."
Recognizing the impact of Bailey's speech, Robinson hurriedly left the chamber to telephone the attorney general: "Bailey's in there and he's making a great speech. He's impressing a lot of people, and I tell you I'm worried." Bailey's speech carried the day, the bill was defeated, and FDR was forced to abandon court reform.
President Truman's most egregious overreach met a similar fate — in this instance at the hands of the Supreme Court in the famous Steel Seizure Case.
In 1952, the United Steel Workers of America threatened to strike. With the United States embroiled in the Korean War, President Truman sought a way to prevent the strike. But he refused to invoke emergency provisions of the Taft-Hartley Act (which had passed over his veto), which governed the activities of labor unions.
Truman announced a government seizure of the mills in a divisive radio address. The Supreme Court agreed to hear the case almost immediately. The steel companies turned for counsel to the venerable New York lawyer John W. Davis. The seventy-nine-year-old Davis had been the 1924 Democratic nominee for president and had argued more cases before the Supreme Court than any other twentieth century American.
If ever there was the perfect confluence of events and the man, it was this case and John W. Davis. Convinced for the past twenty years that the government was dangerously overreaching its constitutional bounds, Davis had become the appellate champion of constitutional restraint.
On May 12, clad in his traditional formal morning suit, Davis rose to make his argument before the Supreme Court. A reporter for the New York Herald Tribune wrote that Davis seemed "to personify the spirit of constitutionalism, his voice that of history itself."
Over the next eighty-seven minutes, a packed courtroom was treated to a flawless performance by the greatest legal advocate in modern American history. Davis declared Truman's seizure not only a "usurpation of power without parallel in American history" but also a "reassertion of kingly prerogative, the struggle against which illumines all the pages of Anglo-Saxon history."
He concluded with Thomas Jefferson's words: "In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution." The courtroom fell silent as Davis finished his argument, presaging the forthcoming 6–3 ruling by the Court that the steel seizure had been unconstitutional.
Two Democratic presidents overreached the bounds of the Constitution and were halted by the efforts of two great Americans. Conservatives can only hope that history might repeat itself.Garland S. Tucker, III is author of Conservative Heroes: Fourteen Leaders Who Shaped America, from Jefferson to Reagan. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.