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The Presidency in the Courts

The Presidency in the Courts

Glendon A. Schubert
Copyright Date: 1957
Edition: NED - New edition
Pages: 404
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  • Book Info
    The Presidency in the Courts
    Book Description:

    Do the American courts restrain the President from committing illegal and unconstitutional acts? If so, how? These are the fundamental questions which are answered here through a systematic and comprehensive analysis of the opinions and decisions of the courts themselves. As Clinton Rossiter, author of “The American Presidency,” points out, “Too many books on the Presidency deal with the powers of this great office, too few with the restraints that fix its place in our system of government. Students of the system will be grateful to Professor Schubert for this tough-minded, even-tempered, exhaustive study of a neglected aspect of the Presidency.” Professor Schubert analyzes hundreds of judicial cases, both federal and state, involving challenges to the legality of presidential action. The period covered is the entire lifetime of the republic and the material is arranged according to the President’s major institutional roles, those of chief administrator, chief of state, commander in chief, and chief magistrate. There are chapters on presidential management of public personnel and the public domain, his control of foreign relations and the tariff, his military powers, enemy aliens, the presidential seizure power and other emergency powers, legal sources of presidential power, due process in presidential lawmaking, and the scope of judicial review of presidential action. Both the theory and practice of presidential rule making and adjudication are examined in detail. The book, the first of its kind, reveals how far from actuality are the generally held beliefs regarding the power of the courts versus the power of the Presidency. The significance of such a study is readily apparent in view of the fact that the fate not only of the United States but of Western civilization will hang in the balance of the President’s exercise of his official powers during the next decade.

    eISBN: 978-1-4529-3697-0
    Subjects: Political Science

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Preface
    (pp. vii-viii)
    Glendon A. Schubert Jr.
  3. Table of Contents
    (pp. ix-2)
  4. CHAPTER 1 Introduction
    (pp. 3-10)

    Every schoolboy knows that democracy in the United States is dedicated to the proposition that the President wields executive power, the Congress has legislative power, and the judiciary, judicial power.¹ This work is a study in the powers of the Presidency, as seen through the eyes of the courts. Its purpose is not to describe what the President can do and does, but rather what the judgessayhe can do. It is, therefore, primarily an analysis of judicial behavior, even though its unifying theme is executive behavior. It is based on an examination of traditional materials by orthodox methods...

  5. I. The Chief Administrator:: Minions and Dominion

    • CHAPTER 2 Presidential Management of Public Personnel
      (pp. 13-65)

      Beginning in the first year of Washington’s first term as President, the scope and exercise of the presidential power of removal (as the principal legal basis for his control of the executive branch) has evoked tough, tenacious constitutional problems.¹ In the only instance in which a President of the United States has been impeached, the precise basis of the charges lay in executive-congressional conflict over this constitutional question, and that dispute was so serious that President Johnson was acquitted by the margin of a single vote. Other matters of particular contemporary significance to be examined in this chapter, such as...

    • CHAPTER 3 Presidential Management of the Public Domain
      (pp. 66-98)

      The closing of the frontier in the continental United States is usually dated at approximately 1890. The end of the frontier also marked the denouement in the development of what used to be an important area of presidential power; apart from its historical significance, the strand of public law which relates to presidential control of the public lands merits attention today because it contains the formulation of a prerogative theory of presidential power that is not found, to any marked degree, in association with other presidential action of domestic impact in peacetime.

      As in his exercise of managerial powers over...

  6. II. The Chief of State:: Sole Organ of the Nation

    • CHAPTER 4 The Conduct of Foreign Relations
      (pp. 101-136)

      Under our system of governance, the recognition or non-recognition of foreign governments is a purely executive act, and among executive acts it is perhaps the most remote from the possibility of judicial review. The question of recognition may be surcharged with explosive overtones for both international and domestic politics, as in the case of the non-recognition of the U.S.S.R. from 1917 to 1933, in the recognition of the new state of Israel and the presidential election of 1948, or in the relationship to the Korean War and the 1952 presidential election of our continued recognition of the exiled government of...

    • CHAPTER 5 Presidential Control over the Tariff
      (pp. 137-170)

      The field of presidential legislation most cultivated by the courts has been tariff rate-making by presidential proclamation. Since a statute which levies taxes is usually considered asine qua nonof legislative power, and further, since administrative rate-making in public utility regulation has been a central problem in the development of American administrative law, it is astounding that — with the exception of judicial confusion and division in two of theInsular Casesrelating to the executive tariff in the territories wrested from Spain following the Spanish-American War¹ and a single decision of the Court of Customs and Patent Appeals²...

  7. III. The Commander in Chief:: Imperium in Imperio

    • CHAPTER 6 Military Necessity and Executive Power
      (pp. 173-203)

      The power of military command sometimes has been confused with the power to raise armies. It would certainly appear at first blush that the President has no constitutional power to create the armies that, once they are raised and equipped, are subject to his command.¹ Nevertheless, the President has always been delegated considerable discretion in implementing the plans of Congress, especially with respect to the circumstances in which the reserves might be called up for temporary duty in time of national emergency proclaimed by the President himself. This was true in George Washington’s time, as it is today.

      The act...

    • CHAPTER 7 The Fifth Column
      (pp. 204-240)

      The act of July 6, 1798, delegated to the President the authority to prescribe rules and regulations for the control of alien enemies in time of war. President Madison was the first to use this authority. After the outbreak of the War of 1812, he issued regulations and directives through the Department of State and the Commissary-General of Prisoners ordering the exclusion of British subjects from a zone forty miles from tidewater. Lockington, an enemy alien and British subject, had been permitted to go from Philadelphia to Reading. When the United States marshal in Philadelphia subsequently found him in Philadelphia...

    • CHAPTER 8 The Seizure Power and Emergency Regulation
      (pp. 241-280)

      In addition to its power to confiscate the property of enemy aliens in time of war, the national government in time of emergency may rigidly control the use of its citizens’ property. The powers of the President in this regard have become increasingly important during the last forty years, largely because of the demands that the prosecution of major foreign wars, and their aftermath, have made upon the nation’s entire economy. This movement began during World War I, when President Wilson, acting under statutory powers, seized in the name of the government various transportation utilities including all railroads in the...

  8. IV. The Chief Magistrate:: “Under the Law”?

    • CHAPTER 9 Legal Sources of Presidential Power
      (pp. 283-301)

      Shortly after his appointment to the Supreme Court, Mr. Justice Joseph Story, sitting in circuit court, justpriorto the declaration of the War of 1812, stated with his usual clarity: “I take it to be an incontestable principle, that the president has no common law prerogative to interdict commercial intercourse with any nation; or revive any act, whose operation has expired. His authority for this purpose must be derived from some positive law.”¹ Interestingly enough, Justice Story changed his mind within a year following the outbreak of the war,² and was led to dissent in strong terms from a...

    • CHAPTER 10 Due Process in Presidential Lawmaking
      (pp. 302-314)

      Until fairly recently, distinctions between the form of executive orders and the form of presidential proclamations were imprecise and fluid. In general, proclamations usually contain a preamble and a formal reference to the source of the President’s authority, with the name of the President who issued it; the first person is usually used, and the Secretary of State countersigns and affixes the seal of the United States. Executive orders, on the other hand, do not usually include a preamble, may or may not refer to the authority under which they are issued, are generally written in the third person, and...

    • CHAPTER 11 The Scope of Judicial Review of Presidential Action
      (pp. 315-346)

      In terms of the theory of separation of powers, the relationship between the judicial branch and the executive is no different from, the judges’ relationship to the legislature: it is, in the language of John Marshall, the “delicate” function of the courts not “to intermeddle with the prerogatives of the executive,” but on the other hand, and again, in either case, “It is emphatically the province and duty of the judicial department to say what the law is.”¹ Generally the courts indulge these presumptions, and consider themselves limited to the same extent, in deciding questions about the constitutionality of executive...

    • CHAPTER 12 Recapitulation
      (pp. 347-358)

      It should be perfectly obvious by now that the most significant aspect of judicial review of presidential orders is its ineffectiveness. If the courts are the most important bulwark of freedom and liberty in the United States, then we have every right to view with alarm the future security of the republic. And yet, the courts have an indispensable role to perform in ensuring that our government will afford in the future, as it already has ensured in such substantial measure in the past, a maximum of freedom under law, and that balance between the rights of the few and...

  9. Appendixes

      (pp. 361-365)
      (pp. 366-366)
      (pp. 366-366)
  10. Table of Cases
    (pp. 367-383)
  11. Subject Guide
    (pp. 384-391)