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CRS Annotated Constitution

Article II -- Table of ContentsPrev | Next

Power Denied by Congress.—Justice Black’s opinion of the Court notes that Congress had refused to give the President seizure authority and had authorized other actions, which had not been taken.711 This statement led him only to conclude that since the power claimed did not stem from Congress, it had to be found in the Constitution. But four of the concurring Justices made considerably more of the fact that Congress had considered seizure and had refused to authorize it. Justice Frankfurter stated: “We must . . . put to one side consideration of what powers the President would have had if there had been no legislation whatever bearing on the authority asserted by the seizure, or if the seizure had been only for a short, explicitly temporary period, to be terminated automatically unless Congressional approval were given.”712 He then reviewed the proceedings of Congress that attended the enactment of the Taft–Hartley Act and concluded that “Congress has expressed its will to withhold this power [of seizure] from the President as though it had said so in so many words.”713

Justice Jackson attempted a schematic representation of presidential powers, which “are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” Thus, there are essentially three possibilities. “1. When the President acts pursuant to an express or implied authorization of Congress,[p.577]his authority is at its maximum, for it includes all that he possess in his own right plus all that Congress can delegate. . . . 2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. . . . 3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject.”714 The seizure in question was placed in the third category “because Congress has not left seizure of private property an open field but has covered it by three statutory policies inconsistent with this seizure.” Therefore, “we can sustain the President only by holding that seizure of such strike–bound industries is within his domain and beyond control by Congress.”715 That holding was not possible.

Justice Burton, referring to the Taft–Hartley Act, said that “the most significant feature of that Act is its omission of authority to seize,” citing debate on the measure to show that the omission was a conscious decision.716 Justice Clark placed his reliance on Little v. Barreme,717 inasmuch as Congress had laid down specific procedures for the President to follow, which he had declined to follow.718

Despite the opinion of the Court, therefore, it seems clear that four of the six Justices in the majority were more moved by the fact that the President had acted in a manner considered and rejected by Congress in a field in which Congress was empowered to establish the rules, rules the President is to see faithfully executed, than with the fact that the President’s action was a form of “lawmaking” in a field committed to the province of Congress. The opinion of the Court, therefore, and its doctrinal implications must be considered with care, inasmuch as it is doubtful that the opinion does lay down a constitutional rule. Whatever the implications of the opinions of the individual Justices for the doctrine of “inherent” presidential powers—and they are significant—the implications for the[p.578]area here under consideration are cloudy and have remained so from the time of the decision.719

PRESIDENTIAL IMMUNITY FROM JUDICIAL DIRECTION

By the decision of the Court in Mississippi v. Johnson,720 in 1867, the President was placed beyond the reach of judicial direction, either affirmative or restraining, in the exercise of his powers, whether constitutional or statutory, political or otherwise, save perhaps for what must be a small class of powers that are purely ministerial.721 An application for an injunction to forbid President Johnson to enforce the Reconstruction Acts, on the ground of their unconstitutionality, was answered by Attorney General Stanberg, who argued, inter alia, the absolute immunity of the President from judicial process.722 The Court refused to permit the filing, using language construable as meaning that the President was not reachable by judicial process but which more fully paraded the horrible consequences were the Court to act. First noting the limited meaning of the term “ministerial,” the Court observed that “[v]ery different is the duty of the President in the exercise of the power to see that the laws are faithfully executed, and among these laws the acts named in the bill. . . . The duty thus imposed on the President is in no just sense ministerial. It is purely executive and political.

“An attempt on the part of the judicial department of the government to enforce the performance of such duties by the President might be justly characterized, in the language of Chief Justice Marshall, as ‘an absurd and excessive extravagance.’

“It is true that in the instance before us the interposition of the court is not sought to enforce action by the Executive under[p.579]constitutional legislation, but to restrain such action under legislation alleged to be unconstitutional. But we are unable to perceive that this circumstance takes the case out of the general principles which forbid judicial interference with the exercise of Executive discretion.

. . .

“The Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cognizance.

“The impropriety of such interference will be clearly seen upon consideration of its possible consequences.

“Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience, it is needless to observe that the court is without power to enforce its process. If, on the other hand, the President complies with the order of the court and refuses to execute the acts of Congress, is it not clear that a collision may occur between the executive and legislative departments of the government? May not the House of Representatives impeach the President for such refusal? And in that case could this court interfere, in behalf of the President, thus endangered by compliance with its mandate, and restrain by injunction the Senate of the United States from sitting as a court of impeachment? Would the strange spectacle be offered to the public world of an attempt by this court to arrest proceedings in that court?”723

Rare has been the opportunity for the Court to elucidate its opinion in Mississippi v. Johnson, and, in the Watergate tapes case,724 it held the President amenable to subpoena to produce evidence for use in a criminal case without dealing, except obliquely,[p.580]with its prior opinion. The President’s counsel had argued the President was immune to judicial process, claiming “that the independence of the Executive Branch within its own sphere . . . insulates a President from a judicial subpoena in an ongoing criminal prosecution, and thereby protects confidential Presidential communications.”725 However, the Court held, “neither the doctrine of separation of powers, nor the need for confidentiality of high–level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.”726 The primary constitutional duty of the courts “to do justice in criminal prosecutions” was a critical counterbalance to the claim of presidential immunity and to accept the President’s argument would disturb the separation–of–powers function of achieving “a workable government” as well as “gravely impair the role of the courts under Art. III.”727

Present throughout the Watergate crisis, and unresolved by it, was the question of the amenability of the President to criminal prosecution prior to conviction upon impeachment.728 It was argued that the impeachment clause necessarily required indictment and trial in a criminal proceeding to follow a successful impeachment and that a President in any event was uniquely immune from indictment, and these arguments were advanced as one ground to deny enforcement of the subpoenas running to the President.729 Assertion of the same argument by Vice President Agnew was controverted by the Government, through the Solicitor General, but, as to the President, it was argued that for a number of constitutional[p.581]and practical reasons he was not subject to ordinary criminal process.730

Finally, most recently, the Court has definitively resolved one of the intertwined issues of presidential accountability. The President is absolutely immune in actions for civil damages for all acts within the “outer perimeter” of his official duties.731 The Court’s close decision was premised on the President’s “unique position in the constitutional scheme,” that is, it was derived from the Court’s inquiry of a “kind of ‘public policy’ analysis” of the “policies and principles that may be considered implicit in the nature of the President’s office in a system structured to achieve effective government under a constitutionally mandated separation of powers.”732 While the Constitution expressly afforded Members of Congress immunity in matters arising from “speech or debate,” and while it was silent with respect to presidential immunity, the Court nonetheless considered such immunity “a functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history.”733 Although the Court relied in part upon its previous practice of finding immunity for officers, such as judges, as to whom the Constitution is silent, although a long common–law history exists, and in part upon historical evidence, which it admitted was fragmentary and ambiguous,734 the Court’s principal focus was upon the fact that the President was distinguishable from all other executive officials. He is charged with a long list of “supervisory and policy responsibilities of utmost discretion and sensitivity,”735 and diversion of his energies by concerns with private lawsuits would “raise unique risks to the effective functioning of government.”736 Moreover, the presidential privilege is rooted in the separation–of–powers doctrine, counseling courts to tread carefully before intruding. Some interests are important enough to require judicial action; “merely private suit[s] for damages based on a President’s official acts” do not serve this “broad public interest” necessitating the courts to act.737 Finally, qualified immunity would not adequately protect the President, because judicial inquiry into a functional[p.582]analysis of his actions would bring with it the evil immunity was to prevent; absolute immunity was required.738

Supplement: [P. 582, add to text following n.738:]

Unofficial Conduct.—In Clinton v. Jones,9 the Court, in a case of first impression, held that the President did not have qualified immunity from suit for conduct alleged to have taken place prior to his election to the Presidency, which would entitle him to delay of both the trial and discovery. The Court held that its precedents affording the President immunity from suit for his official conduct—primarily on the basis that he should be enabled to perform his duties effectively without fear that a particular decision might give rise to personal liability— were inapplicable in this kind of case. Moreover, the separation–of–powers doctrine did not require a stay of all private actions against the President. Separation of powers is preserved by guarding against the encroachment or aggrandizement of one of the coequal branches of the Government at the expense of another. However, a federal trial court tending to a civil suit in which the President is a party performs only its judicial function, not a function of another branch. No decision by a trial court could curtail the scope of the President’s powers. The trial court, the Supreme Court observed, had sufficient powers to accommodate the President’s schedule and his workload, so as not to impede the President’s performance of his duties. Finally, the Court stated its belief that allowing such suits to proceed would not generate a large volume of politically motivated harassing and frivolous litigation. Congress has the power, the Court advised, if it should think necessary to legislate, to afford the President protection.10


Footnotes

711 Id., 585–587.
712 Id., 597.
713 Id., 602.
714 Id., 635–638.
715 Id., 639, 640.
716 Id., 657.
717 2 Cr. (6 U.S.) 170 (1804).
718 Id., 343 U.S., 662, 663.
719 In Dames & Moore v. Regan, 453 U.S. 654, 668–669 (1981), the Court recurred to the Youngstown analysis for resolution of the presented questions, but one must observe that it did so saying that “the parties and the lower courts . . . have all agreed that much relevant analysis is contained in” Youngstown. See also id., 661–662, quoting Justice Jackson’s Youngstown concurrence, “which both parties agree brings together as much combination of analysis and common sense as there is in this area”.
720 4 Wall. (71 U.S.) 475 (1867).
721 The Court declined to express an opinion “whether, in any case, the President of the United States may be required, by the process of this court, to perform a purely ministerial act under a positive law, or may be held amenable, in any case, otherwise than by impeachment for crime.” Id., 498. See Franklin v. Massachusetts, 112 S.Ct. 2767, 2788– 2790 (1992) (Justice Scalia concurring). In National Treasury Employees Union v. Nixon, 492 F.2d 587 (D.C.Cir. 1974), the court held that a writ of mandamus could issue to compel the President to perform a ministerial act, although it said that if any other officer were available to whom the writ could run it should be applied to him.
722 Mississippi v. Johnson, 4 Wall. (71 U.S.) 475, 484–485 (1867) (argument of counsel).
723 Id., 499, 500–501. One must be aware that the case was decided in the context of congressional predominance following the Civil War. The Court’s restraint was pronounced when it denied an effort to file a bill of injunction to enjoin enforcement of the same acts directed to cabinet officers. Georgia v. Stanton, 6 Wall. (73 U.S.) 50 (1867). Before and since, however, the device to obtain review of the President’s actions has been to bring suit against the subordinate officer charged with carrying out the President’s wishes. Kendall v. United States ex rel. Stokes, 12 Pet. (37 U.S.) 524 (1838); Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). Congress has not provided process against the President. In Franklin v. Massachusetts, 112Ct.2767 (1992), resolving a long–running dispute, the Court held that the President is not subject to the Administrative Procedure Act and his actions, therefore, are not reviewable in suits under the Act. Inasmuch as some agency action, the acts of the Secretary of Commerce in this case, is preliminary to presidential action, the agency action is not “final” for purposes of APA review. Constitutional claims would still be brought, however.

Supplement: [P. 579, add to n.723:]

See also, following Franklin, Dalton v. Specter, 511 U.S. 462 (1994) .

724 United States v. Nixon, 418 U.S. 683 (1974).
725 Id., 706.
726 Ibid.
727 Id., 706–707. The issue was considered more fully by the lower courts. In re Grand Jury Subpoena to Richard M. Nixon, 360 F. Supp. 1, 6–10 (D.D.C. 1973) (Judge Sirica), affd. sub nom., Nixon v. Sirica, 487 F.2d 700, 708–712 (D.C.Cir. 1973) (en banc) (refusing to find President immune from process). Present throughout was the conflicting assessment of the result of the subpoena of President Jefferson in the Burr trial. United States v. Burr, 25 Fed. Cas. 187 (No. 14,694) (C.C.D.Va. 1807). For the history, see Freund, Foreword: On Presidential Privilege, The Supreme Court, 1973 Term, 88 Harv. L. Rev. 13, 23–30 (1974).
728 The impeachment clause, Article I, Sec. 3, cl. 7, provides that the party convicted upon impeachment shall nonetheless be liable to criminal proceedings. Morris in the Convention, 2 M. Farrand, The Records of the Federal Convention of 1787 (New Haven: rev. ed. 1937), 500, and Hamilton in The Federalist, Nos. 65, 69 (J. Cooke ed., 1961), 442, 463, asserted that criminal trial would follow a successful impeachment.
729 Brief for the Respondent, United States v. Nixon, 418 U.S. 683 (1974), 95–122; Nixon v. Sirica, 487 F.2d 700, 756–758 (D.C.Cir., 1973) (en banc) (Judge MacKinnon dissenting). The Court had accepted the President’s petition to review the propriety of the grand jury’s naming him as an unindicted coconspirator, but it dismissed that petition without reaching the question. United States v. Nixon, supra, 687 n. 2.
730 Memorandum for the United States, Application of Spiro T. Agnew, Civil No. 73–965 (D.Md., filed October 5, 1973).
731 Nixon v. Fitzgerald, 457 U.S. 731 (1982).
732 Id., 748.
733 Id., 749.
734 Id., 750–752 n. 31.
735 Id., 750.
736 Id., 751.
737 Id., 754.
738 Id., 755–757. Justices White, Brennan, Marshall, and Blackmun dissented. The Court reserved decision whether Congress could expressly create a damages action against the President and abrogate the immunity, id., 748–749 n. 27, thus appearing to disclaim that the decision is mandated by the Constitution; Chief Justice Burger disagreed with the implication of this footnote, id., 763–764 n. 7 (concurring opinion), and the dissenters noted their agreement on this point with the Chief Justice. Id., 770 & n. 4.

Supplement Footnotes

9 520 U.S. 681 (1997) .
10 The Court observed at one point that it doubted that defending the suit would much preoccupy the President, that his time and energy would not be much taken up by it. “If the past is any indicator, it seems unlikely that a deluge of such litigation will ever engulf the Presidency.” 520 U.S. at 702.
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