In 1932 Franklin D. Roosevelt defeated Herbert Hoover for the presidency of the United States.  In his campaign, he had promised American voters a “New Deal.”  Little known to most Americans today, Hoover had prepared the way for Roosevelt’s New Deal with several initiatives like the Reconstruction Finance Corporation and public works like the Boulder Dam.  Roosevelt, however, would take these precedents and expand them to the extreme.  During his first 100 days in office, Congress passed everything he wanted and more.  Indeed, the support he had from Congress was unprecedented.  In the process, Congress crafted the New Deal that Roosevelt wanted through the legislative process.  The result was a significant expansion of the role of the federal government.  FDR wanted the New Deal to end the Depression, to prevent another Depression through reform, and to help Americans through the Depression.  Historians are largely in agreement that he failed in his first initiative, but they agree that he achieved the other two to varying degrees.

During that first 100 days, Congress passed at Roosevelt’s recommendation legislation to change the free enterprise system in the United States called the National Industrial Recovery Act.  This act copied the methods of fascist governments in Europe in terms of economic policy.  It was predicated on the economic theory of Progressives like Thorstein Veblen who suggested that the government should engineer the economy for the purpose of efficiency.  Fascists in Europe had created Corporate States in Germany, Italy, and elsewhere which were predicated on a similar philosophy.  There was a key distinction in America, however, which was that participation in government engineering of the economy by private companies was voluntary.  German and Italian companies, for instance, quickly learned that non-participation was really not an option.  In America, Roosevelt encouraged participation by only granting government contracts to companies involved in the NIRA plan and using his bully pulpit to encourage Americans to only shop at those stores that were participating.  NIRA issued Blue Eagle posters to those companies that volunteered so they could post them in their windows for customers to see.  Roosevelt said that those companies were doing their part to help American get out of the depression.

Another 100 days piece of legislation was the Agricultural Adjustment Act.  This act paid farmers to reduce production.  The philosophy was that by reducing production, prices of crops, meat, and dairy would go up and increase the income of struggling farmers across the country.  So, farmers were paid to plow up acreage already planted with crops and even kill livestock in the first year of the program.  Thereafter, farmers were paid to leave acreage unused to reduce overall production.  While the plan made some sense on paper, for those in America struggling to afford food, seeing the price of food go up was not a welcome sight.  In addition, as some Americans starved for lack of food, news that farmers were killing off thousands of piglets and calves and burying the meat seemed unconscionable.

While both of these programs were innovative and, perhaps, well-intentioned, they did not last.  The Supreme Court declared both unconstitutional.  In 1935, the court unanimously ruled that the NIRA was unconstitutional because some of the regulation needed to make it function gave the president the power to legislate as he could revise the regulation.  The following year, the court ruled that the AAA was unconstitutional because the government did not have the power to reduce production.   In both cases, the ruling was more complex than I have articulated, but it is sufficient to note that what the government was attempting to do was not sanctioned by the Constitution.

These programs are just two examples of many pieces of the New Deal that the Supreme Court declared unconstitutional.  By 1937, Roosevelt was tired of this happening and proposed to change the rules for how judges on the court served.  He suggested through the Judicial Procedures Reform Bill to seek the power to appoint a new justice to the court every time one of the justices reach the age of 70 years and six months.  If justices resigned, Roosevelt could replace them with more pro-New Deal justices.  If they did not, he could still add more pro-New Deal justices.  If the bill had passed, he would have been able to change the complexion of the court immediately.   He used the mid-term election of 1938 to appeal to the American people, and found them less than enthusiastic about his idea.  The Republicans gained 81 seats in the House and though that was not enough to gain control, it showed that the American people would not tolerate Roosevelt tinkering with American institutions like the Supreme Court.  It was one of FDR’s biggest failures.  This story outlines how our government is supposed to function.  The wisdom of the Founders to understand the fallen nature of man is on display here loud and clear.  They were unwilling to create a structure where the President, or one branch of government, could run roughshod over the other two.  Even the exigency of the Great Depression was not enough to cause Americans to abandon those safeguards.

I recount these events because our current president is in the process of changing the normal functioning of the federal government as well.   I am referring to President Obama’s use of Executive Orders.  While he has not issued more than his two predecessors, his executive orders have been both longer and more restrictive than those of either of them.  In addition, many of his orders have been designed to end-run an uncooperative Congress.  President Obama’s “We Can’t Wait” initiatives, his nominations to the National Labor Relations Board made when Congress was technically not in recess, and his halting of deportations of illegal immigrants are just a few early examples of his use of power.  An editorial on the Bret Bart News Network argued that President Obama’s use of the executive pen in these cases was unique in that it altered legislation he had proposed to Congress and was already in place or restricted Congress’s ability to act on a particular issue.  Finally, the network argued that President Obama has been selective in his use of this power arguing in some cases he is powerless to act while in others he acted with power beyond what many thought was constitutional.  Others have gone so far as to suggest his actions are constitutionally suspect.

When Harry S Truman asked Congress for the authority to take over steel mills in Youngstown, OH because the workers had gone on strike during the Korean War, Congress said “no.” Truman did it anyway and the Supreme Court told him he was acting unconstitutionally.  In the decision, the concurring opinion noted, “that when the president acts in defiance of Congress he operates at his lowest ebb of constitutional power and can be enjoined by the courts unless he is in an area uniquely immune from congressional authority.”  Two current examples of presidential action seem to fall into this category.  President Obama’s order on immigration and the statements by the Federal Communications Commission that it has the right to regulate the internet are directly in conflict with Congressional action.   Forbes list of President Obama’s top ten violations of the Constitution in 2013 and the Committee For Justice’s list of twenty-five legal violations by the Obama Administration suggest there is room for closer scrutiny of the President’s actions.  His most recent executive order regarding gun control is clearly another case of the President acting where Congress has the prerogative.

Unfortunately for President Obama, our constitutional system requires the branches of government to work in unison.  As a result, we have a litany of Republican hopefuls who vow to undo these executive orders when they become president.  This should not be necessary.  While I disagree vehemently with both of the Roosevelt programs used as examples above, at least he did not circumvent the Constitutional processes involving Congress to achieve his goals.   Early on in his presidency, he understood that one branch is not supposed to function as all three.  When FDR lost sight of that boundary and attempted to tinker with the Constitutionally sanctioned structure, the American people stood up and said “no!”  It is time for the American people to act again.  I can only hope that we are concerned about maintaining the sanctity of our governing structure as we were in the 1930s.