The Presidency and the
Courts
Role of the Courts Relative to the
Presidency
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The courts are an institution that is designed for
separation from politics. Leadership (multiple justices
with tenure), norms against political decisionmaking,
little control over the courts.
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Historically, the role of the courts has been to represent
the Law, not the public. Ours is a nation of laws.
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The Courts were not designed to be policy making
institutions. Interpret the law and Constitution.
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However, in the modern era the courts have taken on a
policy making role. This is unavoidable due to the fact
that interpretation of what the law says necessarily
implies policymaking.
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Presidents are sworn to uphold the law under the “take
care” clause of the Constitution. The courts are the
ultimate arbiter of what the law is. This means that even
the lowest court has power with respect to the
presidency. The president can be ordered by even a
District court to do things. For example, Nixon was
ordered to turn over the Watergate tapes by a District
court judge. He appealed the case all the way to the
Supreme Court and ultimately had to comply.
The presidency is a distinctly political office. Represents
a cross-section of the public. Must obey the law as any
other citizen, but represents citizens, not the law.
Because of these different representational roles the
president and Court may find themselves at odds over
policy. Reagan, prayer in the schools. Bush I, flag
burning. Bush II, abortion, etc.
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The relationship between the president and the courts is
not one of agency as in the president’s relation with the
bureaucracy. And by design. The framers separated
executive and judicial powers so that the judgment of
one institution could not at will move policy.
Indeed, the “take care” clause means that there may be
times when the president is constitutionally bound to
enforce laws with which the president disagrees.
Desegregation and Eisenhower. Busing and Nixon.
So in some respects the courts bind and constrain the
presidency.
The president’s relation with the courts is less visible
than his relation with Congress or the bureaucracy.
Yet it is one of great importance.
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The courts are:
An agenda setter for the president and the
political system
An independent policy maker, separate
from the president, congress, and
bureaucracy.
At times a policy implementer
Presidential Influence on the
Courts
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Presidents can influence and be influenced
by the Courts.
Presidents influence the courts through
nominations and ultimate appointments to
the judicial system.
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The tradition of Senatorial Courtesy limits presidential
ability to influence District appellate courts.
Senators in fact CONTROL appointments to the district
courts.
Presidents have more control over appointments to the
appellate courts, since multiple senators may be
interested in the appellate courts which cover multiple
states. Even here, though, the tradition of courtesy to
senators has some sway.
The president has total control over nominations to the
Supreme Court, except for the fact that he must be able
to get the nomination approved. This means that
presidents must often compromise concerning who they
nominate.
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Merit versus ideology. Senators seek those who are
compatible with their views. However, in practice if
someone is qualified for the job it may be difficult to
keep from getting.
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Judgeships are often patronage plums handed out for
campaign loyalty or partisan favors.
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District judges usually lobby for the position.
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Appellate judges are usually selected from among the
district judges, though not always.
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It is considered inappropriate for candidates for the
Supreme Court to lobby.
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Appointees are always attorneys. Mostly white males,
though Carter and Clinton made some headway in
making the courts more representative of the
population. Bush also nominated Hispanics and women
to the federal bench.
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Republican Nominees tend to be more conservative.
Some would argue that they are also more “strict
constructionist”. What does the term “strict
constructionist mean”?
All Supreme Court justices were male Caucasians of
European heritage until the appointment of Thurgood
MarshallThurgood Marshall (the first African-American
appointed by Johnson). Saundra Day O’Connor was the
first female .
Currently the court has one African-American (Clarence
Thomas), one hispanic (Sonia Sotomayor), three females
(Ruth Bader Ginsberg, Elena Kagan, and Sonia
Sotomayor), with the other five justices being old white
men (John Roberts, Stephen Breyer, Anthony Kennedy,
Antonin Scalia, and Samuel Alito).
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Interestingly, six current justices are Roman Catholic
(Roberts, Scalia, Kennedy, Alito, Thomas, and
Sotomayor). Three are Jewish (Breyer, Kagan, and
Ginsberg).
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Ginsberg is oldest (b. 1933), Kagan is youngest (b.
1960)
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Eisenhower said that the biggest mistake of hist
administration was appointing Earl Warren.
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Since the Reagan administration, the judicial nomination
process has become increasingly politicized. This is
especially true for the appellate courts. Partisanship,
rather than qualifications have determined the outcome
of the process. The process became increasingly
politicized during the second term of the Clinton
administration and continues to be highly political. Party
polarization seems to be dominating the process.
Outcome of Nominations by Administration, 1965-2002 – Judicial Nominations
Confirmed
Presidential
Administration
Avg.
Da
ys
N
Rejected or
Withdrawn
Avg.
Days
Avg.
Da
ys
N
Johnson
42
24
Nixon
28
251
Ford
38
13
61
Carter
71
53
Reagan I
49
35
37
Reagan II
76
51
173
Bush Sr.
105
--
No Action
0
108
111
All Nominations
Avg.
Days
N
1
N
45
25
38
53
2
40
15
183
4
78
57
1
253
3
65
39
4
351
3
97
58
337
6
133
48
3
42
Clinton I
109
27
196
1
273
8
148
36
Clinton II
202
33
197
2
467
22
344
57
Bush Jr.
266
17
376
2
442
13
115
32
90
345
184
13
371
62
134
420
Total
Duration of the Confirmation Process for Executive Branch and Judicial Nominations
360
330
300
240
210
180
150
120
90
60
30
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Mean Number of Days
270
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There have been 107 nominees to the Supreme Court.
28 failed to be appointed for various reasons. This
means that about 25 percent of all Supreme Court
nominations fail.
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Presidents affect the courts through:
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Appointments to the courts.
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Solicitor General-the solicitor general is responsible for
arguing cases before the appellate and Supreme Court.
He/she decides what cases to appeal from District Court
decisions. He may also ask for movement directly to the
Supreme Court. The solicitor general may also enter a
case as amicus curiae.
Court packing threats. (Roosevelt, 1937)
Proposing legislation or the threat of legislation that
alters the court’s authority.
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The Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 was intended to address the
problem of illegal immigration. One section was intended
to clarify INS authority with respect to grants of asylum.
In this legislation the Congress stripped federal courts of
jurisdiction over Immigration and Naturalization Service
(INS) decisions on whether and to whom to grant
asylum. Effectively, the INS rather than the courts can
now decide not to grant an individual asylum, and that
decision can no longer be reviewed by a federal court.
Another example of jurisdiction stripping is the Prison
Litigation Reform Act of 1996 (PLRA). This legislation
was intended to limit the litigation that prisoners could
file regarding prison conditions and the civil rights of
prisoners. The legislation restricts the “remedies that a
judge can provide in civil litigation relating to prison
conditions.”
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Yet another example is the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA). This legislation was
intended to reinforce the death penalty by making it
more difficult for prisoners to delay execution through
the courts. Accordingly, the AEDPA limits the number of
habeas petitions filed by state prisoners in federal
courts, in addition to other limits on federal court
authority related to such petitions. Habeas petitions are
requests a prisoner makes asking a court to determine
whether his constitutional rights are being deprived as a
result of his incarceration.
Another way that presidents can affect the courts is
through differential enforcement of judicial decisions
(Orfield and Must We Bus?). The president may
sometimes choose to enforce with vigor or with
reluctance.
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The chief executive is sometimes deeply involved in
implementation of judicial interpretations. Prison policy,
civil rights policy.
The rational adaptation/threat model. Courts respond to
threats to their independence by adapting their decisions
to avoid those threats. It is a bargaining game between
the president, Congress, and the Courts.
Judicial Influence on the
Presidency
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Thus far, we have focused on the how presidents affect
the courts. However, presidents are also influenced by
the courts, through Constitutional/statutory
interpretation.
Presidents may not agree with court decisions, such as
Texas vs. Johnson, flag burning, and Bush I. Or
limitations on prayer in the public schools such as have
existed since the 1960s. Nevertheless, they have to
implement the law, as interpreted by the courts. Take
care that the laws are faithfully executed implies that the
president must follow the interpretations of the Court.
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The courts have also affected presidential authority with
respect to administering the bureaucracy.
Humphrey’s Executor vs. US restricted the president’s
ability to remove appointed officials from independent
commissions. President Hoover appointed, and the
Senate confirmed, Humphrey as a commissioner of the
Federal Trade Commission (FTC). In 1933, President
Roosevelt asked for Humphrey's resignation since the
latter was a conservative and had jurisdiction over many
of Roosevelt's New Deal policies. When Humphrey
refused to resign, Roosevelt fired him because of his
policy positions. However, the FTC Act only allowed a
president to remove a commissioner for "inefficiency,
neglect of duty, or malfeasance in office." Since
Humphrey died shortly after being dismissed, his
executor sued to recover Humphrey's lost salary. A
unanimous Court found that the FTC Act was
constitutional and that Humphrey's dismissal on policy
grounds was unjustified. The Court reasoned that the
Constitution had never given "illimitable power of
removal" to the president.
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The president’s authority as commander in chief has
also been restricted by the courts. Youngstown Sheet
and Tube Company vs. Sawyer invalidated Truman’s
seizure of the steel mills during the Korean War. In April
of 1952, during the Korean War, President Truman
issued an executive order directing Secretary of
Commerce Charles Sawyer to seize and operate most of
the nation's steel mills. This was done in order to avert
the expected effects of a strike by the United
Steelworkers of America. Did the President have the
constitutional authority to seize and operate the steel
mills? In a 6-to-3 decision, the Court held that the
President did not have the authority to issue such an
order. The Court found that there was no congressional
statute that authorized the President to take possession
of private property. The Court also held that the
President's military power as Commander in Chief of the
Armed Forces did not extend to labor disputes. The
Court argued that "the President's power to see that the
laws are faithfully executed refutes the idea that he is to
be a lawmaker."
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Another example is relevant to the president’s authority
to decide whether military or civilian courts will hear a
case. Note that this case is directly relevant to
president’s Bush’s actions with respect to terrorism.
Ex Parte Milligan restricted the president’s right to
declare martial law and suspend habeas corpus,
authorities the president often assumes during war times.
Lambden P. Milligan was sentenced to death by a
military commission in Indiana during the Civil War; he
had allegedly engaged in acts of disloyalty. Early in the
civil war, Lambden P. Milligan, a citizen of Indiana, had
been a “Peace Democrat” – one who believed that the
South should be allowed to leave the Union in peace.
Later he became a “major-general” in the “Sons of
Liberty”, a group who planned to raid military prisons in
the Midwest and release Confederate prisoners of war.
In October 1864 before the raids could begin, federal
troops arrested Milligan. He was tried by a military court
martial and sentenced to be hanged.
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Lincoln had suspended habeas corpus which enabled
him to be tried by the military, rather than civil
authorities, but Milligan’s attorney applied to the nearest
federal circuit court for the writ. The case was certified
to the Supreme Court. The question was whether the
military court had the authority to try and convict a
civilian. The Court ruled that Lincoln exceeded his
authority in suspending civil law. The holding was that
martial law can never exist where the courts are open,
and in the proper and unobstructed exercise of their
jurisdiction. Does a civil court have jurisdiction over a
military tribunal? Justice Davis, speaking for the Court,
held that trials of civilians by presidentially created
military commissions are unconstitutional. Martial law
cannot exist where the civil courts are operating.
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The courts have also affected the president’s ability to
maintain secrecy during wartime. New York Times vs. US- the
Pentagon Papers case pitted national security concerns vs first
Amendment rights. In what became known as the "Pentagon
Papers Case," the Nixon Administration attempted to prevent
the New York Times and Washington Post from publishing
materials belonging to a classified Defense Department study
regarding the history of United States activities in Vietnam. The
President argued that prior restraint was necessary to protect
national security. This case was decided together with United
States v. Washington Post Co.
Did the Nixon administration's efforts to prevent the publication
of what it termed "classified information" violate the First
Amendment? Yes. In its per curiam opinion the Court held that
the government did not overcome the "heavy presumption
against" prior restraint of the press in this case. Justices Black
and Douglas argued that the vague word "security" should not
be used "to abrogate the fundamental law embodied in the
First Amendment." Justice Brennan reasoned that since
publication would not cause an inevitable, direct, and
immediate event imperiling the safety of American forces, prior
restraint was unjustified.
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The courts have also limited the president’s authority to
implement a legislative agenda. Carter vs. Carter Coal
Company (1936) and Schechter Poultry Corporation vs.
U.S. (1937) struck down Roosevelt’s New Deal
programs.
Roosevelt then threatened to pack the Supreme Court
until he had a majority on the Court. The Court then
altered it’s position in NLRB vs. Jones and Laughlin Steel
Company (1937), U.S. vs. Darby Lumber Company
(1941), and Wickard vs. Filburn (1942).
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The courts have also affected the president’s powers of
executive privilege. United States vs. Nixon grew out of
Watergate. The president refused to surrender
Watergate tapes claiming executive privilege. The Court
restricted executive privilege, but first recognized it also.
A grand jury returned indictments against seven of
President Richard Nixon's closest aides in the Watergate
affair. The special prosecutor appointed by Nixon and
the defendants sought audio tapes of conversations
recorded by Nixon in the Oval Office. Nixon asserted that
he was immune from the subpoena claiming "executive
privilege," which is the right to withhold information
from other government branches to preserve confidential
communications within the executive branch or to secure
the national interest. Decided together with Nixon v.
United States.
Is the President's right to safeguard certain information,
using his "executive privilege" confidentiality power,
entirely immune from judicial review?
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No. The Court held that neither the doctrine of
separation of powers, nor the generalized need for
confidentiality of high-level communications, without
more, can sustain an absolute, unqualified, presidential
privilege. The Court granted that there was a limited
executive privilege in areas of military or diplomatic
affairs, but gave preference to "the fundamental
demands of due process of law in the fair administration
of justice." Therefore, the president must obey the
subpoena and produce the tapes and documents. Nixon
resigned shortly after the release of the tapes.
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Nixon vs. Fitzgerald 1984. In 1968, Fitzgerald, then a
civilian analyst with the United States Air Force, testified
before a congressional committee about inefficiencies
and cost overruns in the production of the C-5A
transport plane. Roughly one year later he was fired, an
action for which President Nixon took responsibility.
Fitzgerald then sued Nixon for damages after the Civil
Service Commission concluded that his dismissal was
unjust.
Was the President immune from prosecution in a civil
suit? Yes. The Court held that the President "is entitled
to absolute immunity from damages liability predicated
on his official acts." This sweeping immunity, argued
Justice Powell, was a function of the "President's unique
office, rooted in the constitutional tradition of separation
of powers and supported by our history."
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However, with changes in the court, it decided in the
opposite direction in Clinton vs. Jones.
Clinton vs. Jones 1997 -Presidential immunity from
lawsuits while in office resulting from their official acts
arose during Nixon. Under the doctrine established in
U.S. vs. Nixon, they are immune. Presidential immunity
from lawsuits more generally while in office: Paula Jones
suit out of Fairfax, VA and financed by the Christian
Coalition. Paula Corbin Jones sued President Bill Clinton.
She alleged that while she was an Arkansas state
employee, she suffered several "abhorrent" sexual
advances from then Arkansas Governor Clinton. Jones
claimed that her continued rejection of Clinton's
advances ultimately resulted in punishment by her state
supervisors. Following a District Court's grant of Clinton's
request that all matters relating to the suit be
suspended, pending a ruling on his prior request to have
the suit dismissed on grounds of presidential immunity,
Clinton sought to invoke his immunity to completely
dismiss the Jones suit against him.
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While the District Judge denied Clinton's immunity request, the
judge ordered the stay of any trial in the matter until after
Clinton's Presidency. On appeal, the Eighth Circuit affirmed the
dismissal denial but reversed the trial deferment ruling since it
would be a "functional equivalent" to an unlawful grant of
temporary presidential immunity. Is a serving President, for
separation of powers reasons, entitled to absolute immunity
from civil litigation arising out of events which transpired prior
to his taking office? No. In a unanimous opinion, the Court
held that the Constitution does not grant a sitting President
immunity from civil litigation except under highly unusual
circumstances. After noting the great respect and dignity owed
to the Executive office, the Court held that neither separation
of powers nor the need for confidentiality of high-level
information can justify an unqualified Presidential immunity
from judicial process. While the independence of our
government's branches must be protected under the doctrine
of separation of powers, the Constitution does not prohibit
these branches from exercising any control over one another.
This, the Court added, is true despite the procedural burdens
which Article III jurisdiction may impose on the time, attention,
and resources of the Chief Executive.
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The courts have also affected the president’s ability to
implement policy. Clinton vs. City of New York dealt with the
president’s ability to implement the line item veto that had
been approved by Congress. This case consolidates two
separate challenges to the constitutionality of two
cancellations, made by President William J. Clinton, under the
Line Item Veto Act ("Act"). In the first, the City of New York,
two hospital associations, a hospital, and two health care
unions, challenged the President's cancellation of a provision
in the Balanced Budget Act of 1997 which relinquished the
Federal Government's ability to recoup nearly $2.6 billion in
taxes levied against Medicaid providers by the State of New
York. In the second, the Snake River farmer's cooperative and
one of its individual members challenged the President's
cancellation of a provision of the Taxpayer Relief Act of 1997.
The provision permitted some food refiners and processors to
defer recognition of their capital gains in exchange for selling
their stock to eligible farmers' cooperatives. After a district
court held the Act unconstitutional, the Supreme Court
granted certiorari on expedited appeal.
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Did the President's ability to selectively cancel individual
portions of bills, under the Line Item Veto Act, violate
the Presentment Clause of Article I?
Yes. In a 6-to-3 decision the Court first established that
both the City of New York, and its affiliates, and the
farmers' cooperative suffered sufficiently immediate and
concrete injuries to sustain their standing to challenge
the President's actions. The Court then explained that
under the Presentment Clause, legislation that passes
both Houses of Congress must either be entirely
approved (i.e. signed) or rejected (i.e. vetoed) by the
President. The Court held that by canceling only selected
portions of the bills at issue, under authority granted him
by the Act, the President in effect "amended" the laws
before him. Such discretion, the Court concluded,
violated the "finely wrought" legislative procedures of
Article I as envisioned by the Framers.