Presidents versus the Court

Presidents versus the Court

ROBERT W. LANGRAN

Under the American constitutional doctrine of separation of powers, the executive, legislative and judicial branches of government are independent of each other in their assigned areas of authority. However, since the Supreme Court is the final interpreter of the Constitution, enactments of Congress periodically are tested for validity under the process of judicial review. As for acts of Presidents, these have been rarely but spectacularly dealt with when the Court has had occasion to review them. Andrew Jackson's aphorism, "John Marshall has made his decision; now let him enforce it," turned out to be little more than presidential bravado. In the few confrontations between the judiciary and the Chief Executive, the latter has usually come off second best. The following nineteenth-century instances will illustrate the point.

Marshall v. Jefferson:

Marbury v. Madison

The first time the Supreme Court dealt with the President was in the famous case of Marbury v. Madison in 1803. The Federalist party had been defeated in the 1800 elections by the Jeffersonian Republicans, losing control of the [residency and the Congress. In order to insure keeping control of the judicial branch, the Federalists passed two laws before they left office. One was the Circuit Court Act of February 13, 1801 (repealed thirteen months later by the Republicans), which created six new circuit courts with a total of sixteen judges (one of whom was James Marshall, John's brother), several new district courts, and personnel to staff the courts such as marshals and clerks. (See also "The Numbers Game") The other law, passed on February 27, 1801, let the President appoint as many justices of the peace as he deemed necessary for the District of Columbia. These people were the famous "Midnight Judges," to hold office for five years. John Adams named forty-two of them.

One of the appointed justices of the peace was William Marbury, forty-one years of age and an aide to the Secretary of the Navy Benjamin Stoddert. The commissions of office were delivered to most of the forty-two while John Marshall was the Secretary of State, but at midnight on March 3 the Administration changed hands and the new President, Thomas Jefferson, told his acting Secretary of State, Attorney General Levi Lincoln, to cease delivery of the remaining commissions. Jefferson perceived the entire matter to be grossly partisan in nature, and after examining the matter decided on a list of thirty people to be justices of the peace, of whom twenty-three were from the original list of forty-two. Among those who did not get the jobs were Marbury, Dennis Ramsay, William Harper, and Robert Hooe (persons who might have gone unnoticed in history save for this omission).

These four men brought suit in the Supreme Court against the then-Secretary of State James Madison to get the commissions of office delivered to them. The action they took was a request for a writ of mandamus, a court order compelling someone to do something. Under the 1789 Judiciary Act this was a remedy available to them. Congress, as mentioned previously, did repeal the Circuit Court Act, and since federal judges do hold office for life there was a constitutional question as to what to do with the sixteen circuit judges. In order to let the matter sit for awhile in the hope that the controversy would subside, Congress in the same bill told the Supreme Court it would not meet in June for its regular session and could not meet again until February of 1803, some eleven months from the date of the bill. As fate would have it, nobody did challenge the repeal bill and thus the matter would have been put to rest except for the suit by Marbury and friends.

John Marshall was now the Chief Justice, having been placed there by the outgoing President John Adams. Even though Jefferson's name does not appear in the case, it still was a showdown between the President and the Court. If Marshall and his Court issued the writ, the President would tell Secretary of State Madison to ignore it and the Court would lose face, as it had no way of enforcing its order. In fact, even today the Court must rely on the Executive branch in the matter of enforcement. If, on the other hand, the Court did not issue the writ, it would be a clear victory for Jefferson. The fact that Marshall and Jefferson were political and personal enemies made the forthcoming decision even more momentous.

Despite the seeming dilemma, Marshall and his Court came out of the case with a decision which has to rank as a landmark. The Court met on February 9, 1803, in the office of the Clerk of the Senate. Present, besides Marshall, were Justices Washington and Chase. The lawyer for the plaintiffs was Charles Lee, former Attorney General under Washington and Adams and, ironically, one of the sixteen circuit judges whose jobs had been taken from them by the repeal bill. Marshall called upon two clerks from the State Department--Jacob Wagner and Daniel Brent--to testify, but all they said was that they were unsure as to the particular commissions which had been signed and sealed but had not been delivered. Mr. Lincoln was then called, but his testimony was the same as that of the clerks. However, James Marshall, John's brother, said in an affidavit that the commissions for the plaintiffs had been properly sealed and signed (he had actually been delivering the commissions that fateful midnight and had those for Harper and Hooe in his possession but just had not been able to get them to the appointees). This seemed to all to be the evidence Marshall needed to issue the writ, and on February 24 the Court rendered its verdict.

Marshall, to the surprise of most, denied the writ, even though he said that Marbury and the others were entitled to the office. He denied it because he said that that part of the 1789 Judiciary Act which gave the Supreme Court the power to issue writs of mandamus in cases of original jurisdiction (meaning one can start the case at the Supreme Court) was unconstitutional (an interesting sidelight is that one of the Justices, Paterson, had helped write that 1789 law). Marshall's reasoning was that the original jurisdiction of the Supreme Court is given in the Constitution, and therefore it cannot be enlarged, as in this case, or diminished, except by constitutional amendment. Thus, he gave up a power which Congress had conferred upon the Court, but at the same time he gave the Court its greatest power, that of judicial review over federal laws; i.e., the power to look at their constitutionality. At the same time, also, he made it appear that Jefferson was morally wrong in denying the commissions.

The Jeffersonians, of course, only tried to emphasize that part of the decision denying the writ, but nevertheless it was a great victory for John Marshall and the Supreme Court. And what happened to Marbury? He went on to become president of a bank in the Georgetown section of Washington in 1814 and he died in 1835, the same year as John Marshall. The Court, meanwhile, showed that it was impartial as to which President it rebuffed in that the following year, 1804, in the little-known case of Little v. Barreme, it held a naval commander liable in damages for injury to property he inflicted in carrying out provisions of a proclamation of President John Adams which the Court held was in excess of presidential power.

Marshall v. Jefferson:

United States v. Burr

The battle between Marshall and Jefferson reached its peak in the famous Aaron Burr treason trial in 1807, which was held at John Marshall's Circuit Court for Virginia in Richmond. The story began when Jefferson sent a message to Congress in late 1806 in which he accused Burr of planning to attack Mexico and to form his own empire there and with the states west of the Alleghenies, which he would detach from the Union. Two of Burr's conspirators, Erich Bollmann and Samuel Swartwout, were in New Orleans and General Wilkinson declared martial law there and arrested them. Fearful that the Federalist-dominated judiciary would release them, the Senate actually pushed through a bill suspending the writ of habeas corpus but the House of Representatives refused to go along with it. Accordingly, the argument for issuance of the writ was presented to the Court on February 10, 1807, ironically by the same Charles Lee who had represented Marbury and the others, and on February 14 Marshall and his Court issued it. The men were brought to the Court on February 18, and on February 21 Marshall ordered both men released from custody, holding that there was not enough evidence to convict them of treason and furthermore they had committed nothing in Washington, D.C., the site of the Court.

On March 30, 1807, Burr himself was brought before Marshall's Circuit Court and he was bound over to the grand jury on the misdemeanor charge of violating the neutrality law. On June 24, however, the grand jury indicted him not only for that but also for treason. Meanwhile, Marshall had allowed bail to Burr over Jefferson's opposition. The trial lasted from August 17 to September 3, with the prosecuting United States Attorney being George Hay. Burr moved that Marshall subpoena President Jefferson to appear with certain important papers both in June and in September, and both times Marshall did so, as he felt he had that power. Jefferson, naturally, refused to honor them on the grounds that it would jeopardize the independence of the executive. He also added that he, the President, had duties which were superior to his duties as a citizen.

Marshall proceeded to exclude most of the government's testimony as not bearing on treason, whereupon the jury came in with a verdict of not guilty because of the evidence submitted. Marshall, relying heavily upon the arguments of Burr and defense counsel Luther Martin, drew the distinction between actually levying war against the United States and merely advising or procuring. He felt that advising or procuring was conspiracy, not treason. He did admit that procuring might be treason, but that would have to be charged in the indictment and proved by two witnesses. The defense, of course, said that it would be most difficult find two witnesses to such a secret act as procuring an armed force, and Marshall said that that still would not justify a conviction without proof.

After the verdict, the government dropped similar charges against other conspirators, although Jefferson insisted that Burr be charged with the misdemeanor of planning an attack against Mexico, for which he was also adjudged not guilty. The reaction by Jefferson to all this was outrage, and it seems clear that he thought for awhile about impeaching Marshall. In Congress, meanwhile, two months after the verdict, an attempt was made to amend the Constitution to impose a limited term of office upon federal judges and also to enable the President to remove a federal judge by a two-thirds vote in each house of Congress. In addition, in1808 a special Senate committee headed by John Quincy Adams issued a report which assailed Marshall's rulings and also hinted at the possibility of impeachment. Finally, a bill was introduced to amend the law of treason; it was defeated. Attention of the country then shifted from domestic to foreign affairs and the controversy surrounding the Burr trial subsided.

The Burr controversy did not involve the entire Supreme Court, only the Justice in whose circuit the trial actually took place, and Justices no longer have to hold court in their assigned circuits, but nevertheless it was important in that while it allowed the President to create the precedent of immunity from subpoenas, it also showed that presidential enemies could not be jailed on treason charges without actual proof as required by the Constitution. Furthermore, the Supreme Court and not just one Justice did take part in the Ex parte Bollmann and Swartwout decisions which effectively said same thing as did the Burr decision by Marshall.

The Court v. Jackson:

Kendall v. United States

Andrew Jackson was no great enthusiast of the Supreme Court, as that oft-quoted remark of his alluded to at the beginning of the article will attest. His one skirmish with the Court, however, came in a case involving his Postmaster General, Amos Kendall, and the decision was rendered after Jackson left the presidency. It also involved the now-famous writ of mandamus.

Kendall had revoked the settlement of certain claims of postal contractors which had been made by his predecessors in that office. When Mr. Stokes was not credited with the entire amount of money due him he went to court. He had a good case, because Congress had turned the matter over to the Solicitor of the Treasury and he had allowed all the claims, and Congress in turn provided redress by private bill. As usual in a case of this import the lawyers on each side were impressive. Richard S. Coxe and Reverdy Johnson represented Kendall and Francis Scott Key and Attorney General Butler represented the government in its effort to force Kendall to pay the claims. The Circuit Court of the District of Columbia issued the writ of mandamus against Kendall, and in 1838 the Supreme Court affirmed it.

All seven Justices joined in the opinion by Justice Thompson, which stated that there are some duties performed by government officers such as cabinet members which are political in nature and consequently fall under the direction of the President. However, Congress may also impose duties upon these people that they think proper and which are not unconstitutional and in these cases the law is controlling, not the President. Since the case in question was the latter type mandamus was the appropriate common law remedy to enforce that ministerial duty which Kendall had violated. In addition, four of the Justices said that the District of Columbia court did have jurisdiction to so issue that writ, since it was a general jurisdiction court. Other federal courts did not gain that power until 1962.

When Justice Thompson read the decision he implied in it that President Jackson had believed that he could forbid the execution of laws. Attorney General Butler objected to this, and Thompson agreed to delete it from the printed Court opinion even though he said that he felt Butler had intimated it in his argument before the Court and that Justices Baldwin, McKinley, and Wayne agreed that Thompson had heard correctly.

As would be expected, President Van Buren criticized the decision in his annual message that December 3^rd, but Congress apparently saw nothing wrong in the decision as it did not act on Van Buren's criticism. Although the case did not involve the President as such, it did involve an official of the United States appointed by him, and the decision did create a precedent for asserting claims against federal officials, still a continuing problem.

Taney v. Lincoln: The Civil War Cases

The Civil War era brought President Abraham Lincoln and Chief Justice Roger Taney into conflict with each other. It was an almost-inevitable clash because both were strong-willed persons thrust into the uniqueness of a Civil War situation where crucial decisions had to be made, sometimes without the luxury of a time period in which to think them through and to get opinions from others.

The initial conflict began in April 1861, when Lincoln told his military commanders that they might suspend the writ of habeas corpus in the area between Philadelphia and Washington, as in that area he feared much sabotage. One of the persons apparently engaging in such activities was John Merryman, the president of the Maryland Agricultural Society and an officer in that state's militia. He was suspected of destroying bridges on the Northern Central Railway and, in May, was arrested by the military and confined to Fort McHenry under General Cadwalader on a treason charge. Merryman applied to the Circuit Court in Baltimore, which was run by Chief Justice Taney, for a writ of habeas corpus. On May 27 Taney issued the writ, but Cadwalader sent an aide to say that he would not produce Merryman because his superior, Commanding General of the Army Winfield Scott, had suspended habeas corpus the month before on Lincoln's order. Taney ordered Cadwalader to show cause the next day as to why he should not be held in contempt, but when the general still would not produce Merryman Taney rendered his momentous opinion in the case of Ex parte Merryman.

The Court ruled in favor of Merryman, stating that only Congress could suspend habeas corpus. After delivering this opinion verbally, Taney proceeded to put it in writing on June 1 for President Lincoln.

Meanwhile, the marshal who went to the fort to get Merryman was not allowed in. However, on July 4^th Secretary of War Cameron interviewed Merryman and on July 12^th he ordered him delivered to the marshal. During this time Merryman was indicted for treason but he was released on bond and never brought to trial. Altogether he spent some forty-nine days in jail. President Lincoln responded with a message to Congress in which he said that he had inherent power to suspend habeas corpus, and in August and September 1862, he did just that for all rebels, all those engaging in disloyal practices, and all those who interfered with enlistments and conscription. Lincoln's action was fully supported by Attorney General Edward Bates, who in a formal opinion in July 1861 had stated that the President and the judiciary were equal branches of government and as such might interpret the Constitution differently. Lincoln, of course, believed that he was defending the Constitution with his actions. Congress supported Lincoln in March 1863, by allowing him to suspend habeas corpus everywhere in the country. In September 1863, the cabinet approved an order by the War Department which told all military officers that they might cite presidential authority whenever they refused a habeas corpus writ. Taney, for his part, simply refused to let any treason trials take place in his Circuit Court without his presence, and he was too ill for over a year to hear any cases.

Taney opposed something else the government was doing during this period. In order to help finance the war, the government resorted to an income tax of 3% on personal income. However, since the Constitution states that a federal judge's salary may not be diminished while he holds office Taney wrote a letter to Secretary of the Treasury Chase (soon to succeed Taney as Chief Justice) saying that it was illegal to deduct the income from federal judges' salaries. The letter was written on February 16, 1863, and on March 10^th Taney had it entered into the Supreme Court's records. In 1872 Secretary of the Treasury Boutwell ordered all the tax refunded, agreeing completely with the then-departed Taney's opinion.

Also on March 10^th, 1863, the entire Supreme Court had its first chance to adjudicate one of Lincoln's Civil War actions. At issue was the April 19, 1861, blockade of southern ports ordered by Lincoln and agreed to by Congress on July 13, 1861. He had ordered the blockade to halt the ships from carrying goods to the Confederate States, and any ships seized by Union ships were considered prizes. Since a number had been seized the cases are called simply the Prize Cases and the main question before the Court was whether the President had the right to order the blockade. Justice Robert Grier, speaking also for Justices Wayne, Swayne, Miller, and Davis, said that Lincoln's action was proper. He said that although a President does not have the power to initiate war, once one has begun through an insurrection the President was to act as he saw best for the country without waiting for Congress. He has this power as Commander-in-Chief. In fact, the reasoning went on, the proclamation of the blockade showed that a state of war existed which demanded such action.

The four dissenters (Nelson, Catron, Clifford, and Taney) joined together in an opinion written by Nelson in which they insisted that the basic war power belonged to Congress, and only after it had declared a war could something such as a blockade be done. Therefore, the President was wrong in his action, and even congressional ratification of the seizures did not save him because it was an ex post facto law and thus unconstitutional. According to them, all ships seized between the presidential proclamation and the act of Congress were seized illegally. Of course, this was the minority opinion, but it took courage to say this in the face of the Civil War events occurring at the time. Perhaps that courage also permeated to other courts, because on June 3, 1863, a circuit court ordered a federal Provost-Marshal to return seized merchandise or its value and to pay damage and costs, and on June 19, 1863, a court ruled illegal the government confiscation of a box of dry goods on a ship. Some extreme Republicans reacted to all this by attempting to legislate the Supreme Court out of existence or to substitute judges they liked for those they did not, but Lincoln's reaction was merely to add the tenth Justice to the Supreme Court as Congress had increased the number of seats on the Court to that figure.

In February 1864, the Court would not review the sentence of a military commission which had ordered Clement Vallandigham, a civilian and in fact a former Democratic congressman from Ohio, to close confinement during the war. He had made a speech on May 1, 1863, critical of Lincoln for what he said was needlessly prolonging the war. Under an order issued the previous month by General Burnside, who had Ohio as his command, persons who made speeches such as that were subject to military arrest and procedure. A Circuit Court refused to issue the writ of habeas corpus and the Supreme Court, in Ex parte Vallandigham, in a decision written by Justice Wayne, felt that it could not hear cases from military commissions since those commissions were not courts. Thus, the Supreme Court was consistent in its refusal to upset actions of the President taken while the war was in progress. Such was not to be the case, however, once the war was over and Lincoln had left the scene.

Chase v. Johnson: Reconstruction Cases

In December 1866, the Court rendered its decision in the highly celebrated case of Ex parte Milligan. Milligan had been arrested on October 5, 1864, by the military commander in Indiana, tried before a military commission and convicted of conspiracy to release and arm rebel prisoners and to then go with them into Kentucky and Missouri in order to plan an invasion of Indiana. The sentence was hanging, pronounced on May 18, 1865, but President Andrew Johnson commuted it to life imprisonment and Milligan petitioned for habeas corpus.

A unanimous Court ruled that President Lincoln had had no right to authorize the military commission to try civilians in areas which are remote from the war where the civil courts are open. Justice Davis, speaking this time for himself and four others, also felt that even Congress did not have the right to authorize this type of procedure. He agreed that martial law might be used in an invasion, but not in a threatened invasion. Chief Justice Chase, speaking for himself and three others, did feel that Congress could have authorized these military tribunals in nonwar areas, even though in this case it had not done so.

As for Milligan, the Court held that since he had not been indicted by a grand jury the

next time it met, under the 1863 Habeas Corpus Act the government had to release him. The decision was a clear victory for civil liberties under the Constitution, and the fact that it was unanimous attested to the courage and integrity of the Court.

Also in 1866 the Court heard the case of Ex parte Garland, dealing with the President's power to grant reprieves and pardons. President Johnson's philosophy of Reconstruction was much milder than the Radical Republicans' in Congress. Among other acts, they had passed the Federal Test Act in 1865 requiring all federal attorneys to take an oath that they had never engaged in rebellion against the United States, or given aid to rebels, or even expressed any sympathy for their cause. In a five to four decision, the Court held the act unconstitutional, holding it both a bill of attainder (a legislative enactment declaring guilt before the judicial process can take place) and an ex post facto law. At the same time, the Court held the President's pardoning power to be unlimited except in cases of impeachment. It applies to all offenses known to the law, and the President may utilize it at any time, either before the legal proceedings are taken, when they are pending, or after conviction and judgment. Congress has no control over this presidential power.

In March 1867, Congress passed a series of Reconstruction statutes over Johnson's veto, and on April 5 an equity suit was brought by attorneys for the Johnson government in Mississippi which was about to be replaced by a federal military administration. The attorneys were Robert J. Walker, Alexander H. Garland, and William L. Sharkey, and they sought to enjoin President Johnson from enforcing those acts in Mississippi on the grounds that the acts were unconstitutional. The case, Mississippi v. Johnson, marked the first time the Supreme Court had ever been asked to stop a President from enforcing the law as enacted by Congress, and even though he opposed the laws, Johnson, through his Attorney General Stanbery, said he would not comply with a decision enjoining him from enforcing the laws. Stanbery also formally objected to the filing of the suit.

The case was argued on April 12, and on April 15 Chief Justice Chase, speaking for a unanimous Court, held that the Court had no jurisdiction to enjoin the President when the President was engaging in major executive actions such as carrying into effect a Congressional statute. His reasoning was that those actions involve political discretion and therefore an injunction would be interfering with the political acts of the other two branches, and defying it would create an absurd situation. If the President obeyed it, then the legislative branch might wish to take action against the President, such as impeachment. Chase did feel that presidential actions of a ministerial nature might be enjoined since they involved no discretion, and he also felt that the decision applied to Congress as well; i.e., the Court could not enjoin it either when political discretion was involved.The decision did not deter attorney Walker very long, as he then joined in a suit one Charles O'Conoor on behalf of Mississippi and Georgia to try to enjoin Secretary of War Stanton and General Grant from enforcing the acts in those two states. The case, Georgia v. Stanton, was argued April 26, May 1, 3, and 6, and ten days later the Court rendered the same decision as in the previous case in that it dismissed the suit for lack of jurisdiction, holding that the rights being adjudicated were not of persons or property, which is within the purview of the Court, but were political in that they involved sovereignty, and the Court does not deal in political questions. The Mississippi counsel then tried to amend the suit to show that the state had a property interest in the case, but the Court denied it in a split four-four vote (Justice Wayne, Clifford, Nelson, and Field would have allowed the amended suit, but Chief Justice Chase and Justices Swayne, Miller, and Davis were opposed, and Justice Grier was absent).

The following year the Court again became quite controversial when a Mississippi editor by the name of McCardle was arrested and held for trial by a military commission under an early Reconstruction act. On January 17, 1868, the Court accepted a habeas corpus petition and set the case for March 2. However, on March 5 Chief Justice Chase had to leave the Court to preside over President Johnson's impeachment trial in the Senate, so on the 9^th the Court merely said that it would take the case under advisement. Congress became fearful that the Court would use this case to invalidate the Reconstruction Acts and so just three days later rushed through a bill withdrawing from the appellate jurisdiction of the Court all cases arising under the 1867 Habeas Corpus Act, even those which the Court had already taken, as in the matter of McCardle. As expected, Johnson vetoed it on the 25^th, and the next day the Senate overrode him 33-9, and the day after that the House overrode him 115-57, thus making the bill into law. Johnson was acquitted in May, but the Court did not get around to rendering a decision as to whether Congress could take away its appellate jurisdiction even on cases already taken until April 12, 1869. At that time, in Ex parte McCardle, Chief Justice Chase for a unanimous Court held that Congress did have the right and therefore McCardle was denied his hearing. On the same day, in Texas v. White, Chase gave the famous decision saying that no state may secede from the Union.

In these Reconstruction cases the Court started out strongly by striking down the military commissions in the non-war areas and by striking down the Federal Test Act, but then, probably very slowly, refused to halt enforcement of Reconstruction Acts and allowed Congress to take away some of its jurisdiction. More than likely the Court would have been hurt had it done otherwise, as the temper of the country was clearly in favor of the Court's actions, or more properly inactions, in these cases. Using discretion as the better part of valor, the Court lived to fight another day.

Harlan v. the Presidency: Field v. Clark

The final important nineteenth-century case involving the Court and the presidency was Field v. Clark in 1892. It was important in that the Court had to face an upcoming national issue. The issue was the delegation of Congressional power to the President and his branch, and the reason it was becoming an issue was because Congress was delegating more and more. This particular case concerned the Tariff Act of 1890, in which the United States worked out reciprocal trade agreements with other nations, included in which were free imports of some of those nations' products. The delegation of power came with a section which authorized the President to suspend the free entry and impose prescribed duties if the nation in question was imposing reciprocally unequal or unreasonable duties on our imports. Justice John Harlan spoke for the Court in sustaining the act. He did admit that outright delegation of legislative power was unconstitutional, but this law did not do that because the President had nothing to do with the expediency or the just operation of the law. He had to suspend existing duties when he ascertained the existence of a particular fact. Thus, he was obeying the legislative will rather than making laws himself, and he was not policy making but rather ascertaining facts.

The standard set by the Court in this case, accepting reasonable delegation of power, was used as precedent in most of the subsequent delegation of power cases. The Court struck a middle position which enabled the other two branches, particularly the executive, to more effectively perform their tasks.

Looking back upon these nineteenth-century cases, one can see that the relationship between the President and the Supreme Court was a fluctuating one due to the lack of detail surrounding their relationship in the Constitution.

This balance shown by the Supreme Court in these cases is good because otherwise our separation of powers principle would not function effectively. Giving in to the President on every occasion would mean the Court not performing its function as it should, but rather being an unequal partner in government. Conversely, always ruling against the President would have been the demise of the Court, because Presidents, especially in wartime situations, would simply have ignored the Court and the latter would have been helpless to do anything about it. Thus the Court has acted wisely and that serves the purpose of enabling the President and the Supreme Court to coexist as integral components of the political system of the United States of America.

Yearbook 1977 Supreme Court Historical Society