Thomas Jefferson and the Great Executive Overreach

You have probably heard by now that Barack Obama intends to raise the minimum wage for employees hired to fulfill new government contracts–and that he will do this under his own executive authority. The other side is up in arms.

“He’s the president of the United States — he’s not a king,” said Representative Michelle Bachman, as she exhorted Congress to sue the president in her response to the State of the Union address. Glenn Beck, who recently apologized for his role in degrading political discourse, said only that “this was the State of the Union where our president declared he would become America’s first dictator.”

I have no doubt that this is exactly how Hitler would have raised contract employee salaries. However, at the risk of seeming to minimize the constitutional seriousness of the national executive determining how much to pay federal workers, I would point out that other presidents have wielded their executive power in ways almost as serious

One might, for example, point to Lincoln’s suspension of Habeus Corpus, or his Emancipation Proclamation, as examples of pseudo-legislative acts under a thin veneer of executive privilege. Truman desegregating the troops would be another. And then there was Roosevelt’s infamous Executive Order 9066, authorizing the internment of American citizens of Japanese descent during World War II.

As it turns out, presidents have used executive power to do all sorts of things — some good and some bad — nearly as consequential as giving a small pay raise to people who work for the federal government. No presidential act in American history, however, comes closer to dictatorship than Thomas Jefferson’s decision to purchase the Louisiana Territory from Napoleon in 1803.

Jefferson knew perfectly well that he did not have the constitutional authority to purchase land on behalf of the United States. Ten years earlier, he had argued furiously against Hamilton’s national bank on the grounds that the Constitution did not grant the federal government the power to start a bank. And the Constitution is also silent on acquiring huge tracts of land. Under the arguments that Jefferson used to win the Election of 1800, the Louisiana Purchase was going to require a constitutional amendment.

No presidential act in American history comes closer to dictatorship than Thomas Jefferson’s decision to purchase the Louisiana Territory
Michael Austin
But, the Federalists in Congress were in no mood to give Jefferson anything that he wanted, and they signaled their intention to oppose an amendment. So Jefferson became a very quick convert to the notion of “implied powers” that he had once considered a form of treason. In a telling letter to James Madison, he wrote, “the less we say about the constitutional difficulties respecting Louisiana, the better, and what is necessary for surmounting them must be done sub silentio.

So, Jefferson went ahead and purchased half of the continent, more than doubling the size of the country and setting the stage for a United States spanning from sea to shining sea. We can be glad that he did; had he not done so, everything about our history would be very different today.

But, this does not change the fact that he used his executive power in a way that he himself considered illegal in order to accomplish what he saw as a non-negotiable objective. It was the right call, but it was also, as John Quincy Adams wrote in his memoirs, “an assumption of implied power greater in itself and more comprehensive in its consequences, than all the assumptions of implied power in the twelve years of the Washington and Adams Administrations put together.”

And yet certain voices in our society consider Thomas Jefferson the patron saint of limited government and Barack Obama an overreaching dictator.