Presidential Tax Discretion and Eighteenth Century Theory

• Author: Louis Fisher
• DOI: 10.1177/106591297002300109
• Published date: 01 March 1970
• Date: 01 March 1970
• Subject Matter: Articles

151

PRESIDENTIAL

TAX

DISCRETION

AND

EIGHTEENTH

CENTURY

THEORY

LOUIS

FISHER

Queens

College,

City

University

of

New

York

N

SIGNING

the

tax

surcharge

bill

on

June

28,

1968,

President

Johnson

posed

two

questions:

(1)

&dquo;How

can

we

avoid

in

the

future

the

costly

inaction

and

the

threat

of

fiscal

stalemate

we

have

just

experienced?&dquo;

(2)

&dquo;How

can

we

develop

procedures

to

assure

the

timely

adjustment

of

fiscal

policy

and

the

closest

cooperation

between

the executive

and

legislative

branches

in

this

area?&dquo;

The

answer

to

these

questions

came

on

January

16,

1969,

when

he

presented

his

final

Economic

Report.

As

a

step

toward

greater

flexibility

in

fiscal

policy,

President

Johnson

recommended

that

Congress

give

the

President

discretionary

authority

to

initiate

tax

adjustments,

subject

to

congressional

veto.

Although

this

proposal

offers

the

advantages

of

efficiency

and

reliability

in

stabilization

policy,

a

constitutional

objection

is

immediately

raised

by

those

who

deny

that

administrative

efficiency

should

ever

take

precedence

over

the

eighteenth

century

model

of

separated

powers.

The

very

purpose

of

separation,

they

argue,

was

to

obstruct

the

process

of

government

and

frustrate

the

designs

of

one

branch

over

another.

The

separation

doctrine,

according

to

this

view,

was

intended

to

protect

human

rights

at

the

expense

of

efficiency.

In

the

oft-quoted

words

of

Jus-

tice

Brandeis,

the

&dquo;doctrine

of

the

separation

of

powers

was

adopted

by

the

Con-

vention

of

1787,

not

to

promote

efficiency

but

to

preclude

the

exercise

of

arbitrary

power.&dquo;

1

The

Brandeis

thesis

has

been

given

a

recent

boost

by

Senator

Sam

J.

Ervin,

Jr.,

chairman

of

the

Subcommittee

on

Separation

of

Powers.

Speaking

in

1967,

Senator

Ervin

declared

that

&dquo;one

of

the

most

salutary

features of

our

Constitution

is

the

degree

of

inefficiency

it

imparts

to

the

exercise

of

governmental

power.

And

I

have

suspected

that

the

Founding

Fathers

intentionally

and

very

wisely

provided

for

a

measure

of

inefficiency

to

assure

that

the

impulse

to act

and

the

opportunity

to

take

action

would

not

occur

simultaneously.&dquo;

2

This

article

advances

the

opposite

thesis

-

that

both

the

Presidency

and

the

separation

of

powers

were

adopted

as

means

of

promoting

efficiency.

Far

from

being

a

mechanical

contrivance

to

achieve

deliberate

institutional

frustration,

the

Presidency

was

an

evolutionary

creature,

coming

to

life

in

the

years

from

1776

to

1787

when

the

Continental

Congress

demonstrated

an

inability

to

handle

adminis-

trative

problems.

Shortly

after

the

Constitution

had

constructed

the

three

depart-

ments

of

government,

George

Washington

made

the

following

observation:

&dquo;It

is

unnecessary

to

be

insisted

upon,

because

it

is

well

known,

that

the

impotence

of

Congress

under

the

former

confederation,

and

the

inexpediency

of

trusting

more

1

Myers

v.

United

States,

272

U.S.

52,

293

(1926).

2

U.S.

Senate,

Committee

on

the

Judiciary,

Hearings

on

Separation

of

Powers,

90th

Cong.,

1st

Sess.,

Part

1,

p.

2

(1967).