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CRS Annotated Constitution

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The President as Law Interpreter

The power accruing to the President from his function of law interpretation preparatory to law enforcement is daily illustrated in relation to such statutes as the Anti–Trust Acts, the Taft–Hartley Act, the Internal Security Act, and many lesser statutes. Nor is this the whole story. Not only do all presidential regulations and orders based on statutes that vest power in him or on his own constitutional powers have the force of law, provided they do not transgress the Court’s reading of such statutes or of the Constitution,657 but he sometimes makes law in a more special sense. In the famous Neagle case,658 an order of the Attorney General to a United States marshal to protect a Justice of the Supreme Court whose life has been threatened by a suitor was attributed to the President and held to be “a law of the United States” in the sense of Sec. 753 of the Revised Statutes, and as such to afford basis for a writ of habeas corpus transferring the marshal, who had killed the attacker, from state to national custody. Speaking for the Court, Justice Miller inquired: “Is this duty [the duty of the President to take care that the laws be faithfully executed] limited to the enforcement of acts of Congress or of treaties of the United States according to their express terms, or does it include the rights, duties and obligations growing out of the Constitution itself, our international relations, and all the protection implied by the nature of the government under the Constitution?”659 Obviously, an affirmative answer is assumed to the second branch of this inquiry, an assumption which is borne out by numerous precedents. And in United States v. Midwest Oil Company,660 it was ruled that the President had, by dint of repeated assertion of it from an early date, acquired the right to withdraw, via the Land Department, public[p.565]lands, both mineral and nonmineral, from private acquisition, Congress having never repudiated the practice.

Military Power in Law Enforcement: The Posse Comitatus

“Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State or Territory by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.

“The President, by using the militia or the armed forces, or both . . . shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law . . . .”661

These quoted provisions of the United States Code consolidate a course of legislation which began at the time of the Whiskey Rebellion of 1792.662 In Martin v. Mott,663 which arose out of the War of 1812, it was held that the authority to decide whether the exigency had arisen belonged exclusively to the President.664 Even before that time, Jefferson had, in 1808, in the course of his efforts to enforce the Embargo Acts, issued a proclamation ordering “all officers having authority, civil or military, who shall be found in the vicinity” of an unruly combination, to aid and assist “by all means in their power, by force of arms or otherwise” the suppression of[p.566]such combination.665 Forty–six years later, Attorney General Cushing advised President Pierce that in enforcing the Fugitive Slave Act of 1850, marshals of the United States had authority when opposed by unlawful combinations to summon to their aid not only bystanders and citizens generally, but armed forces within their precincts, both state militia and United States officers, soldiers, sailors, and marines,666 a doctrine that Pierce himself improved upon two years later by asserting, with reference to the civil war then raging in Kansas, that it lay within his obligation to take care that the laws be faithfully executed to place the forces of the United States in Kansas at the disposal of the marshal there, to be used as a portion of the posse comitatus. Lincoln’s call of April 15, 1861, for 75,000 volunteers was, on the other hand, a fresh invocation, though of course on a vastly magnified scale, of Jefferson’s conception of a posse comitatus subject to presidential call.667 The provisions above extracted from the United States Code ratified this conception as regards the state militias and the national forces.

Suspension of Habeas Corpus by the President

See Article I, Sec. 9.

Preventive Martial Law

The question of executive power in the presence of civil disorder is dealt with in modern terms in Moyer v. Peabody,668 to which the Debs case669 may be regarded as an addendum. Moyer, a labor leader, brought suit against Peabody for having ordered his arrest during a labor dispute which occurred while Peabody was governor of Colorado. Speaking for a unanimous Court, one Justice being absent, Justice Holmes said: “Of course the plaintiff’s position is that he has been deprived of his liberty without due process of law. But it is familiar that what is due process of law depends[p.567]on circumstances. It varies with the subject matter and the necessities of the situation. . . . The facts that we are to assume are that a state of insurrection existed and that the Governor, without sufficient reason but in good faith, in the course of putting the insurrection down held the plaintiff until he thought that he safely could release him.

“. . . In such a situation we must assume that he had a right under the state constitution and laws to call out troops, as was held by the Supreme Court of the State. . . . That means that he shall make the ordinary use of the soldiers to that end; that he may kill persons who resist and, of course, that he may use the milder measure of seizing the bodies of those whom he considers to stand in the way of restoring peace. Such arrests are not necessarily for punishment, but are by way of precaution to prevent the exercise of hostile power. So long as such arrests are made in good faith and in the honest belief that they are needed in order to head the insurrection off, the Governor is the final judge and cannot be subjected to an action after he is out of office on the ground for his belief.

“. . . When it comes to a decision by the head of the State upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial process.”670

The Debs Case.—The Debs case of 1895 arose out of a railway strike which had caused the President to dispatch troops to Chicago the previous year. Coincidentally with this move, the United States district attorney stationed there, acting upon orders from Washington, obtained an injunction from the United States circuit court forbidding the strike because of its interference with the mails and with interstate commerce. The question before the Supreme Court was whether this injunction, for violation of which Debs had been jailed for contempt of court, had been granted with jurisdiction. Conceding, in effect, that there was no statutory warrant for the injunction, the Court nevertheless validated it on the ground that the Government was entitled thus to protect its property in the mails, and on a much broader ground which is stated in the following passage of Justice Brewer’s opinion for the Court: “Every government, entrusted, by the very terms of its being, with powers and duties to be exercised and discharged for the general[p.568]welfare, has a right to apply to its own courts for any proper assistance in the exercise of the one and the discharge of the other. . . . While it is not the province of the Government to interfere in any mere matter of private controversy between individuals, or to use its granted powers to enforce the rights of one against another, yet, whenever the wrongs complained of are such as affect the public at large, and are in respect of matters which by the Constitution are entrusted to the care of the Nation and concerning which the Nation owes the duty to all the citizens of securing to them their common rights, then the mere fact that the Government has no pecuniary interest in the controversy is not sufficient to exclude it from the courts, or prevent it from taking measures therein to fully discharge those constitutional duties.”671


657 United States v. Eliason, 16 Pet. (41 U.S.) 291, 301–302 (1842); Kurtz v. Moffitt, 115 U.S. 487, 503 (1885); Smith v. Whitney, 116 U.S. 167, 180–181 (1886). For a recent analysis of the approach to determining the validity of presidential, or other executive, regulations and orders under purported congressional delegations or implied executive power, see Chrysler Corp. v. Brown, 441 U.S. 281, 301– 316 (1979).
658 In re Neagle, 135 U.S. 1 (1890).
659 Id., 64. The phrase, “a law of the United States,” came from the Act of March 2, 1833 ( 4 Stat. 632 ). However, in the Act of June 25, 1948, 62 Stat. 965 , 28 U.S.C. Sec. 2241 (c)(2), the phrase is replaced by the term, “an act of Congress,” thereby eliminating the basis of the holding in Neagle.
660 236 U.S. 459 (1915). See also Mason v. United States, 260 U.S. 545 (1923).
661 10 U.S.C. §§ 332 , 333. The provisions were invoked by President Eisenhower when he dispatched troops to Little Rock, Arkansas, in 1957 to counter resistance to Federal District Court orders pertaining to desegregation of certain public schools in the Little Rock School District. Although the validity of his action was never expressly reviewed, the Court, in Cooper v. Aaron, 358 U.S. 1, 4, 18–19 (1958), rejected a contention advanced by critics of the legality of his conduct, namely, that the President’s constitutional duty to see to the faithful execution of the laws as implemented by the provisions quoted above, does not afford a sanction for the use of troops to enforce decrees of federal courts, inasmuch as the latter are not statutory enactments which alone are comprehended within the phrase, “laws of the United States.” According to the Court, a judicial decision interpreting a constitutional provision, specifically the Court’s interpretation of the Fourteenth Amendment enunciated “. . . in the Brown Case [ Brown v. Board of Education, 347 U.S. 483 (1954)] is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect . . . .”
662 1 Stat. 264 (1792); 1 Stat. 424 (1794); 2 Stat. 443 (1807); 12 Stat. 281 (1861); now covered by 10 U.S.C. §§ 332 –334.
663 12 Wheat. (25 U.S.) 19 (1827).
664 Id., 31–32.
665 Wilson, Federal Aid in Domestic Disturbances, S. Doc. No. 209, 57th Congress, 2d Sess. (1907), 51.
666 6 Atty. Gen.446 (1854). By the Posse Comitatus Act of 1878, 20 Stat. 152 , 18 U.S.C. Sec. 1385 , it was provided that “it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress. . . .” The effect of this prohibition, however, was largely nullified by a ruling of the Attorney General “that by Revised Statutes 5298 and 5300 [ 10 U.S.C. §§ 332 , 334] the military forces, under the direction of the President, could be used to assist a marshal. 16 Ops. Atty. Gen. 162.” B. Rich, The Presidents and Civil Disorder (Washington: 1941), 196 n. 21.
667 12 Stat. (app.) 1258.
668 212 U.S. 78 (1909).
669 In re Debs, 158 U.S. 564 (1895).
670 212 U.S., 84–85. See also Sterling v. Constantin, 287 U.S. 378 (1932), which endorses Moyer v. Peabody, while emphasizing the fact that it applies only to a condition of disorder.
671 158 U.S., 584, 586. Some years earlier, in United States v. San Jacinto Tin Co., 125 U.S. 273, 279 (1888), the Court sustained the right of the Attorney General and his assistants to institute suits simply by virtue of their general official powers. “If,” the Court said, “the United States in any particular case has a just cause for calling upon the judiciary of the country, in any of its courts, for relief . . . the question of appealing to them must primarily be decided by the Attorney General . . . and if restrictions are to be placed upon the exercise of this authority it is for Congress to enact them.” Cf. Hayburn’s Case, 2 Dall. (2 U.S.) 409 (1792), in which the Court rejected Attorney General Randolph’s contention that he had the right ex officio to move for a writ of mandamus ordering the United States circuit court for Pennsylvania to put the Invalid Pension Act into effect.
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